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Agenda - 01/23/2006CITY OF WOODBURN CITY COUNCIL AGENDA JANUARY 23, 2006 - 7:00 P.M. KATHRYN FIGLEY, MAYOR WALTER NICHOLS, COUNCILOR WARD 1 RICHARD BJELLAND, COUNCILOR WARD II PETER MCCALLUM, COUNCILOR WARD III JAMES COX, COUNCILOR WARD IV FRANK LONERGAN, COUNCILOR WARD U ELIDA SIFUENTEZ, COUNCILOR WARD Vi CITY HALL COUNCIL CHAMBERS - 270 MONTGOMERY STREET e e e CALL TO ORDER AND FLAG SALUTE ROLL CALL ANNOUNCEMENTS AND APPOINTMENTS Announcements: A. A mid-year review and 2006-07 Budget Work Session will be held with the Budget Committee on January 30, 2006 at 7:00 p.m. in the Council Chambers. Appointments: None. PROCLAMATIONS/PRESENTATIONS Proclamations: None. Presentations: A. Tourism- Woodburn Chamber of Commerce COMMITTEE REPORTS A. Chamber of Commerce B. Woodburn Downtown Association COMMUNICATIONS None. BUSINESS FROM THE PUBLIC - This allows the public fo introduce items for Council consideration not already scheduled on the agenda. "Habr~ int~rpretes ~isponib/es para aqua[las personas q~e no bah[an Ingl~s/ previo ac;ter~o, com~iniquese al (5o3) ~o-~4ss." January 23, 2006 Council Agenda Page i e 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 at a Council member. Ae Woodburn City Council minutes of January 9, 2006 Recommended Action: Approve the minutes. Be Woodburn Planning Commission minutes of December 8, 2005 Recommended Action: Accept the minutes. Woodburn Recreation and Parks Board draft minutes of January 10, 2006. Recommended Action: Accept the draft minutes. De Claims December 2005 Recommended Action: Receive the report. Ee Police Department Statistics - December 2005 Recommended Action: Receive the report. Recreation Services Division Attendance Reports - November and December 2005 Recommended Action: Receive the reports. G. Fall 2005 Recreation Services Revenue Report Recommended Action: Receive the repods. H. Woodburn Memorial Aquatic Center Revenue Comparison Recommended Action: Receive the report. Public Hearing, Proposed Sale of Property to Habitat for Humanity Recommended Action: Receive the report. TABLED BUSINESS Ae Union Pacific Pipeline Crossing Agreement Recommended Action: Remove the item from lhe table for consideration and decision as General Business Item 11G. 10 13 15 19 26 28 29 30 31 January 23, 2006 Council Agenda Page ii 10. PUBLIC HEARINGS 11. Ae Formal Interpretation 05-01 for the Location of a Secure Residential Care Facility (1605 E. Lincoln) Recommended Action: Conduct public hearing, receive public comment, and direct staff to prepare an ordinance to substantiate its decision. 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 port/on of the Council's agenda. Comment time may be limited by Mayoral prerogative. Ae Council Bill 2606 - Ordinance amending ordinance 2055 (the business registration ordinance) and setting an effective date Recommended Action: Adopt the ordinance. Be Council Bill 2607 - Resolution entering into Woodburn Interchange Agreement No. 22933 with the State of Oregon and authorizing the City Administrator to sign such agreement Recommended Action: Adopt the resolution. Ce Council Bill 2608 - Resolution revising guidelines, procedures and process for obtalning City Tourism and Economic Development Grant Funds pursuant to Ordinance No. 2057 {the Transient Occupancy Tax Ordinance) Recommended Action: (1) Adopt the resolution amending the Tourism and Economic Development Grant Guidelines; (2) find that justification exists to suspend the competitive grant process for one year, as provided for by the revised Guidelines; and (3) authorize the City Administrator to execute an agreement awarding 2006 Tourism and Economic Development Grant funds in an amount not-to-exceed $44,400 to the Woodburn Area Chamber of Commerce. De Appeal of Zoning Adjustment Case File No. 05-02 located at 120 Smith Drive Recommended Action: Concur with or modify the Community Development Director's decision and instruct staff to prepare an ordinance to substantiate its decision. 61 71 84 101 119 January 23, 2006 Council Agenda Page iii E. 143 12. 13. 14. 15. 16. Easement Extinguishment and Modification (relocation) Recommended Action: Approve the Extinguishment Agreement of a Public Storm Sewer Easement as outlined in Attachment "A" and the Modification Agreement of an existing Public Access Easement as outlined in Attachment "B" and authorize the City Administrator to sign said agreements. Uquor License - New Outlet Recommended Action: Recommend that the Oregon Liquor Control Commission approve a liquor license application for Bear Creek Stores, Inc. trade name: Harry and David. NEW BUSINESS 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. Ao Planning Commission's approval of Design Review 05-12 and Variance 05-19 located at 515 S. Settlemier B. Planning Commission's approval of Partition 05-07 and Variance 05-20 located at 2701 N. Front Ce Community Development Director's Approval of Partition 05-06 located at 1791 W. Lincoln CITY ADMINISTRATOR'S REPORT MAYOR AND COUNCIL REPORTS ADJOURNMENT 166 169 171 176 January 23, 2006 Council Agenda Page iv 8A COUNCIL MEETING MINUTES JANUARY 9, 2006 TAPE READING 000! DATE. COUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, JANUARY 9, 2006. CONVENED. The meeting convened at 7:00 p.m. with Mayor Figley presiding. 0010 ROLL CALL. Mayor Figley Present Councilor Bj elland Present Councilor Cox Present Councilor Lonergan Present Councilor MeCallum Present Councilor Nichols Present Councilor Sifuentez Present Staff Present: City Administrator Brown, City Attorney Shields, Police Chief Russell, Public Works Director Tiwari, Interim Community Development Director Zwerdling, Finance Director Gillespie, Park & Recreation Director Westrick, Public Works Manager Rohman, Associate Planner Salas, Senior Engineering Tech Scott, City Recorder Tennant 0042 ANNOUNCEMENTS. A) Martin Luther King Holiday - City Hall and the Library will be closed on Monday, January 16, 2006, in observance of Martin Luther King holiday, The Aquatic Center will be open with their regular hours of operation. B) Styrofoam Collection Event has been scheduled by Marion County environmental Services for January 21, 2006 from 9:00 am until 3:00 pm at Pringle Creek Community in Salem. C) Public Hearing will be held on January 23, 2006 to consider formal interpretation #05-01 for the location of a secure residential care facility at 1605 E. Lincoln Street. D) Public Hearing will be held on January 23, 2006 to consider a property sale to Habitat for Humanity. 0114 BUDGET COMMITTEE RE-APPOINTMENT. Mayor Figley re-appointed Alma Grijalva to the Budget Committee, Position m, with her term to expire on December 31, 2008. MCCALLUM/NICHOLS... approve the re-appointment of Alma Grijalva to the Budget Committee with a term expiration date of December 31, 2008. The motion passed unanimously. 0157 PRESENTATION - LEGION PARK FLAG POLE CONTRIBUTORS Mayor Figley stated that a new flag pole has been erected in Legion Park and she recognized the following financial contributors to this project: JoAnn Beck, Attorney; Page 1 - Council Meeting Minutes, January 9, 2006 1 COUNCIL MEETING MINUTES JANUARY 9, 2006 TAPE READING Laura Broz of Brown Insurance Agency; Corvanta -Marion, Inc.; Estates Realty; Hallmark Properties; Klien & Hand, Attorneys; Andrew H Ulven of Howard Holdings, Inc.; Mid-Valley Bank; William D. Lang of WinCo Foods; Wolfer's Inc.; Woodburn Fertilizer; Woodburn Independent; Terry Withers of Woodbum Construction; James A. Cox, Attomey; Lou Villa; and Mr. & Mrs. Vance Yoder. She also presented Certificates of Appreciation to Terry Withers, Bert Bartholomew, Peter Hall, and Nick Davis of Woodburn Construction; Ben Vasquez, Brian Amzen, and Mike Shepard of Cougar Electric; and Dan Evers and Ivan Vistica of American Legion Post No. 46. On behalf of the American Legion Post No. 46, Dan Evers and Ivan Vistica presented the City with an American Flag to fly on the pole. 0300 CHAMBER OF COMMERCE REPORT. Nick Harville, Executive Director, provided the Mayor and Council with recent office statistics which included statistics from the Visitor's Center at Woodburn Company Stores. He stated that the Visitor's Center is averaging 47 visitors each day over the last five months and it is anticipated that the number will increase as summer approaches. Additionally, 19,000 pieces of literature have been distributed at the Center. On January 11th, a new study will be put out by Travel Oregon and some of the early statistics to be presented in this study states that 2005 tourism spending in Oregon was $7.4 billion which is 7.4% more than in calendar year 2004. Upcoming Chamber events are as follows: 1) Annual dinner will be held on January 27~h at Country Meadows; 2) the Business Summit, hosted by the Woodbum and Silverton Chambers, will be held on February 14th at the Woodbum Armory for the purpose of creating better access to some of the industries and businesses that are here in the area. A business fair will be held in the afternoon to expose 8th and 9t~ graders in the local School districts to what jobs are available so that they can select elective classes based on the type of work they may be interested in. The keynote speaker at this event will be Lita Colligan, Workforce Advisor from the Governor's office. 3) Chamber Forum will be held on January 18~h with Mayor Figley to give the State of the City address. 0482 WOODBURN SCHOOL DISTRICT REPORT. Superintendent Walt Blomberg stated that the following individuals have been appointed as principles to the new small high schools: Jennifer Dixon will be principle at the Arts and Communication School; Gerry Frederico will be principle at the Business & Technology School; and Chuck Ransom will be principle at the International School. The District is recruiting outside of the district for a person to become principle of the Health Wellness School. The small schools are now creating the visions and curriculum that will coincide with those visions so that they will be able to communicate with the Page 2 - Council Meeting Minutes, January 9, 2806 COUNCIL MEETING MINUTES JANUARY 9, 2006 TAPE students and parents about the schools. A meeting has been scheduled with 8th grade parents for February 25th to familiarize the parents with the process prior to selection of a school. He stated that the School District has been working with the Fire and Police Departments for community preparedness which includes coordination of services in case an emergency should occur. Lastly, the district had a long break over the holidays and school is now back in session. District staff had evaluated past student attendance and found that many families travel this time of the year and many of the Russian students have a holiday immediately following the traditional Christmas holiday. To insure that the district had the most students in class most of the time, the District had made a decision to lengthen the winter break. 0725 0802 0824 CONSENT AGENDA. A) approve the Council minutes of December 12, 2005; B) accept the Recreation and Parks Board draft minutes of December 13, 2005; C) accept the Planning Commission minutes of November 10, 2005; D) accept the Library Board minutes of December 14, 2005; E) receive the Planning Tracking Sheet dated January 3, 2006; F) receive the Building Activity Report for December 2005; G) receive the Claims Report for November 2005; and H) receive the report on the Hiring Process for an Assistant City Attorney. NICHOLS/MCCALLUM... adopt the Consent Agenda as presented. The motion passed unanimously. TABLED BUSINESS. Mayor Figley stated that staff work on this agreement is nearly complete and it will be brought before the Council at the next regular meeting. PUBLIC HEARING: APPEAL OF ZONING ADJUSTMENT CASE FILE NO. 05 02 LOCATED AT 120 SMITH DRIVe'.. Mayor Figley declared the public hearing open at 7:16 p.m.. Councilor Cox stated that he had viewed the site so that he could better understand the appeal which is now before the Council. The Mayor and Councilors also stated for the record that they are familiar with the site. Recorder Tennant read the land use stated as required under ORS Chapter 197. Interim Director Zwerdling stated that she had approved a zoning adjustment on property located at 120 Smith Drive on November 28, 2005 which would reduce the rear yard setback from 24 feet to 19.42 feet to allow for the expansion of an existing garage towards the rear of the property. The following two conditions within the approval were appealed by the property owner David Emmenegger: 1) proposed garage expansion shall Page 3 - Council Meeting Minutes, January 9, 2006 COUNCIL MEETING MINUTES JANUARY 9, 2006 TAPE READING 1369 comply with the minimum 20 foot setback from the front property line adjacent to Workman Drive, and 2) the Public Works condition which states that the existing driveway approach to the site from Workman Drive needed to be repaired for safety reasons prior to building permits being issued. She stated that this was a de nova public hearing allowing for additional testimony by any party. Interim Director Zwerdling stated that the site plan showed a setback of 14.72 feet from the side property line adjacent to Workman Drive while the Woodbum Development Ordinance requires a 20 foot front yard setback and applies to setback adjacent to the street. Staff had informed'the property owner of the problem and informed them that they could either submit a revised site plan to show conformance or submittal of a variance application for Planning Commission review. The applicant did not want to revise his plan or submit a variance application and, given there is the 120-day rule to follow, staff proceeded to bring this appeal to the Council. The driveway is missing a section of concrete which has been identified as a safety hazard and there is a City ordinance which requires a property owner to fix the driveway approach. Councilor Cox stated that the existing house and existing garage are already within the 20 foot setback and questioned if the house was built either before the 20 foot setback was established or in violation of the 20 foot setback. Interim Director Zwerdling expressed her belief that the home was built before the 20 foot setback was established by the City. However, any expansion on the site would be subject to the current code. Councilor Bjelland questioned if this would be an extension of a garage or if it would be a new garage which will have new garage doors and a driveway onto Workman Drive. Interim Director Zwerdling stated that it would be an expansion of the existing garage and the building within the 20 foot setback would require a variance. Councilor McCallum questioned if the applicant would be required to fix the driveway even if this application was not currently before the Council. Interim Director Zwerdling stated that applicant would be required to repair the driveway approach under an existing City ordinance. 1640 Dan Atchison, Attorney representing David Emmenegger, stated that their position is that the existing dwelling is already a legal non-conforming use that exists within the setback. The extension onto the dwelling would not encroach any further into the setback and would be parallel with the existing building. His interpretation of the City code is that when building an accessory building that is attached to the existing structure, the accessory building is required to be counted as part of the existing structure. In regards to the driveway cutout, he stated that they were appealing that condition more as a clarification as opposed to an objection to the condition. He stated that the applicant had cutout a section of the concrete in order to install a sprinkler system and, in the performance of this expansion, he may have to readjust the elevation of the driveway which would require removal of the concrete and replacing it at a different height level. Page 4 - Council Meeting Minutes, January 9, 2[[06 COUNCIL MEETING MINUTES JANUARY 9, 2006 TAPE The applicant has no problem with repairing the cutout but they wanted to make sure that the condition of approval did not require it to be removed completely. He reiterated that there will be garage doors existing where the garage doors are now and the existing driveway will be used for access to the new garage. Councilor Cox questioned if the new extension will take access from the same driveway or if it would take access off of Workman Drive. David Emmenegger stated that he would like to put a garage door offofthe Workman Drive driveway in order to make the extension more usable. Councilor Cox referred to page 53 of the agenda packet and questioned how the home could have been constructed inside of the setback of the plat. Attorney Atchison was not sure if the setback figures on the zone map are the same as what was in place when the home was first constructed. No one in the audience spoke either for or against the application. Councilor Cox agreed that the gap in the driveway needs to be filled in, however, the applicant has appealed the condition since they do not feel that it should be a condition and should be enforced in some other way. Staffs justification for including it as a condition is included in Ordinance No. 1917 and, in his reading of this ordinance, he did not feel that it applied to this driveway since, in this case, the driveway is not any part of a sidewalk. Senior C.E. Technician Scott stated that they had included the condition based on the statement in the Ordinance that it includes the driveway approach. Councilor Bjelland questioned staff on their interpretation of accessory building. Councilor Cox stated that the general rule in other cities is that a legal non-conforming use cannot be expanded and, in his opinion, this application would provide for the expansion of a non-conforming use. Interim Director Zwerdling referred to Section 1.104.04 which deals with change or expansion of an existing use within a non-conforming structure. Attorney Shields stated that the findings to be included in the ordinance would establish a non-conforming use. Interim Director Zwerdling also stated that the zoning ordinance refers to an accessory building that is detached and, in this case, the building would be attached to the garage. Attorney Atchison requested that the record be kept open so that they could provide evidence that the dwelling is a legal non-conforming use. He also expressed his opinion that the applicant is not making the property any more non-conforming since they are staying at the same setback encroachment. It has been suggested that the applicant could go through a variance process, however, he stated that the issue is that the existing structure is a legal non-conforming use. Also, their interpretation of the code is that the building is attached to the existing structure which then makes it an extension of the structure and in compliance with the development code. Attorney Shields stated that if the Council were to leave the record open for 7 days, then it would be necessary to request the applicant to agree to an extension of the 120-day rule. Page 5 - Council Meeting Minutes, January 9, 2~06 COUNCIL MEETING MINUTES JANUARY 9, 2006 TAPE READING He also stated that there are certain issues raised in the appeal and the non-conforming use is not in the appeal. Attorney Atchison stated that the applicant would be willing to waive the 120-day rule for the record process to remain open. In regard to the appeal, he stated that they had raised the issue of the side and setback in general and he believed that they were entitled to raise any legal argument within that singular issue of the setback requirement. Interim Director Zwerdling stated that the 120-day rule would expire on January 27, 2006 and she suggested that it be extended by 30-days which would give the Council the next meeting to review the record and the following meeting to adopt an ordinance. COX/SIFUENTEZ... close the hearing but keep the record open for additional submittals as requested by the applicant on condition that the applicant would agree to the extension of the 120-day rule to February 27, 2006. Mayor Figley questioned if she should close the public hearing at this time. Attorney Shields advised the Mayor to close the heating but leave the record open for 7 days to allow for submissions provided that the applicant agrees to the extension of the 120-day rule. Attorney Atchison stated that the applicant has no objection to waiving the 120-day rule until February 27, 2006 in order to allow the record to remain open. Mayor Figley declared the public heating closed at 7:45 p.m.. On roll call vote, the motion passed unanimously. Councilor Nichols urged the property owner to make a temporary repair to the driveway apron since it is a hazard. 3095 COUNCIL BILL NO. 2602 - ORDINANCE ANNEXING 9.62 ACRES OF PROPERTY INTO THE CITY LOCATED ON THE SOUTH SIDE OF MOLALLA ROAD AND NORTH OF JUNE WAY, GRANTING A ZONE CHANGE FROM MARION COUNTY UTF TO CITY CG ZONE, APPROVING DESIGN REVIEW APPLICATION CASE FILE NO. 04-18, AND ATTACHING CERTAIN CONDITIONS (2045 MOLALLA ROAD). Councilor Sifuentez introduced Council Bill 2602. Recorder Tennant read the two readings of the bill by title only since there were no objections from thc Council. On roll call vote for final passage, the bill passed unanimously. Mayor Figley declared Council Bill 2602 duly passed. 3249 COUNCIL BILL NO. 2603 - ORDINANCE VACATING THAT PORTION OF SIXTH STREET SOUTH OF WEST LINCOLN STREET. Mayor Figley stated that the agenda title states that this bill has an emergency clause, however, the actual Council Bill in the packet does not have the emergency clause. Council Bill 2603 was introduced by Councilor Sifuentez. The two readings of the bill were read by title only since there were no objections from the Council. On roll call vote Page 6 - Council Meeting Minutes, January 9, 2~06 COUNCIL MEETING MINUTES JANUARY 9, 2006 TAPE KEADING for final passage, the bill passed 5-0-1 with Councilor Cox abstaining. Mayor Figley declared Council Bill 2603 duly passed. 3400 COUNCIL BILL NO. 2604 - RESOLUTION ESTABLISHING THE COMPENSATION SCHEDULE OF CERTAIN HOURLY AND SEASONAL EMPLOYEES. Councilor Sifuentez introduced Council Bill 2604. The bill was read by title only since there were no objections from the Council. On roll call vote for final passage, the bill passed unanimously. Mayor Figley declared Council Bill 2604 duly passed. 3428 COUNCIL BILL NO. 2605 - RESOLUTION INITIATING CONSIDERATION OF 3672 3725 THE MILL CREEK GREENWAY MASTER PLAN. Council Bill 2605 was introduced by Councilor Sifuentez. Recorder Tennant read the bill by title only since there were no objections from the Council. Councilor Bjelland stated that it was unclear as to why the Resolution is necessary since the Council has already been discussing this plan. Attorney Shields stated that this would be a land use regulation and, under the City's Development Code process, the first step is to adopt a Resolution then it is forwarded to the Planning Commission to begin the land use process. On roll call vote for final passage, the bill passed unanimously. Mayor Figley declared Council Bill 2605 duly passed. ACCEPTANCE OF PUBLIC RIGHT-OF-WAY. Staff recommended the acceptance of public fight-of-way from the Oregon Child Development Coalition, Inc. which is a 25-foot strip of land adjacent to West Hayes Street and a 7-foot strip of land along their frontage adjacent to Settlemier Avenue to a point 130 feet north of West Hayes Street. It was noted that this dedication of right-of- way was a condition placed on the property owner as a condition of the Sixth Street vacation. COX/1VICCALLUM .... accept the public right-of-way offered as described in Attachment "A" to the staff report. The motion passed unanimously. REVISION TO BUSINESS REGISTRATION ORDINANCE. Mayor Figley stated that staff report was being presented to the Council for their information in advance of presenting an actual ordinance thereby giving the Council an opportunity to comment or ask questions of staff. Councilor Cox questioned if an ordinance had been prepared in draft form for the Council to review. Finance Director Gillespie stated that a draft ordinance is ready for Council review but it was not presented at this meeting since staff wanted to see if the Council had any concerns or questions. Page 7 - Council Meeting Minutes, January 9, ?,~)06 TAPE READING COUNCIL MEETING MINUTES JANUARY 9, 2006 Councilor Cox stated that he had a lot of questions on this proposal but felt it would be easier for him to make his questions more relevant if he could see the draft ordinance. Councilor Bjelland stated that one issue of concem is the definition of home occupation and he questioned if the ordinance includes a definition. Finance Director Gillespie stated that he did not see this definition in the draft ordinance and staff would make necessary changes to address this issue. He stated that the City has 732 registered businesses but there has been 856 additional businesses identified that might qualify as businesses that should be registered. In making the financial impact projections, the existing number of businesses registered, the numbers identified as potentially registered businesses, and the 90% rate was used to estimate the revenue increase. Councilor Cox questioned if the Chamber group participating in this review process had signed off on the final draft. Finance Director Gillespie stated that staff had met with the Chamber during the latter part of December and they had signed off on the draft document. In attendance at the meeting were members of the Chamber Executive Committee. The Woodburn Downtown Association was also invited but they were unable to attend the meeting. 4201 PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS. 4260 A) Community Development Director's Approval of Design Review #05-09 located at 153 Grant Street: Approval given to place an awning on the south building elevation located at 153 Grant Street. Mayor Figley stated that she owns the property next door at 171 Grant Street and she does not object to this design review approval. No action was taken by the Council on this issue. MAYOR AND COUNCIL REPORTS. Councilor Lonergan thanked the staff for the information presented in the City's Quarterly Newsletter on the City's Emergency Management program and steps our residents can take to prepare themselves in case of a disaster. He urged the public to read the newsletter and follow the advice outlined in the newsletter. Councilor McCallum agreed with Councilor Lonergan and hoped that staffhas extra copies available for distribution to new residents. Councilor McCallum also congratulated the Parks & Recreation Department and the Downtown Association for their contribution to Christmas Tree Lighting program. He also reminded the public that February 2, 2006, 7:00 p.m., Bunker Restaurant at North Park Plaza, is the kickoff event for Relay for Life 2006. The relay will be held on June 23 and 24, 2006 at the Woodbum High School. Councilor Bjelland stated that he hoped to report some good news in the near future on potential grant funds for the completion of sidewalks along Highway 214 in the vicinity of the high school. Page 8 - Council Meeting Minutes, January 9, 2~06 COUNCIL MEETING MINUTES JANUARY 9, 2006 TAPE READING Mayor Figley urged citizens to read the newsletter just in case a natural disaster does occur in our area. 4596 EXECUTIVE SESSION. Attorney Shields stated that there is no need to hold an executive session at this meeting. 4639 ADJOURNMENT. MCCALLUM/SIFUENTEZ... meeting be adjourned. The motion passed unanimously. The meeting adjourned at 8:09 p.m.. APPROVED KATHRYN FIGLEY, MAYOR ATTEST Mary Tennant, Recorder City of Woodburn, Oregon Page 9 - Council Meeting Minutes, January 9,~006 8B WOODBURN PLANNING COMMISSION MEETING MINUTES December 8, 2005 CONVENED The Planning Commission met in a regular session at 7:00 p.m. in City Hall Council Chambers with Chairperson Lima presiding. Chairperson Lima announced that since there were no public hearings the rest of the announcement would be omitted, and continue with roll call. ROLL CALL Chairperson Lima P Vice Chairperson Bandelow A Commissioner GrosJacques P Commissioner Vancil P Commissioner Grigorieff P Commissioner Hutchison P Commissioner Jennings A Staff Present: Naomi Zwerdling - Interim Community Development Director Breah Pike-Salas- Associate Planner Marta Carrillo - Administrative Assistant MINUTES Woodburn Planning Commission Meetin.q Minutes of November 10, 2005 Commissioner GrosJacques moved to accept the minutes as written. Vice Chairperson Gri.qorieff seconded the motion, which unanimously carried. BUSINESS FROM THE AUDIENCE None. COMMUNICATIONS Woodburn City Council Meeting Minutes of October 24, 2005. Woodburn City Council Meeting Minutes of October 31, 2005. Woodbum City Council Meeting Minutes of November 14, 2005. PUBLIC HEARINGS None. ITEMS FOR ACTION None. Planning Commission Meeting December 8, 2005 10 Page 1 of 3 DISCUSSION ITEMS Interim Community Development Director Zwerdlincj commented on the Conditional Use and Sign Permit and the sign compliance with the Woodburn Development Ordinance. Clarified that there is a number of triggers, not just the conditional use, but also the Type Ill design review request with the same sign requirement. Type II design review requests trigger the sign requirement; Type II design review aren't required to go through the Planning Commission. Chairperson Lima asked interim Community Development Director Zwerdling to elaborate on the comment made. Interim Community Development Director Zwerdlin.q stated that the last public hearing meeting was a conditional use request and triggered that the applicant needed to bring the signs into conformance with the sign code. There were issues in regards to the different types of applications that would trigger that requirement. It was brought up that the conditional use did and a mention of design review as well, but clarification was needed because it was confusing. At this time we are starting to see more applications with that requirement. REPORTS Chairperson Lima ..asked if there are no items for January. Interim Community Development Director Zwerdlino. stated that at this time there is nothing that needs to be reviewed. And with the second meeting in December being cancelled and time span between meetings, there could be an item that could be completed that needs to be reviewed by the next meeting. Chairperson Lima asked the commission if they had any questions for the staff on the Activity Report or Track Sheet. Chairperson Lima asked about the first application for LDS Church that had gone to the City Council hearing. Interim Community Development Director ZwerdlinR stated that it is scheduled for the City Council on Monday, December 12. Commissioner Yancil commented about the amount of work being done at the Silverton Hospital, the old K-Mart building, and asked about the agreement of conditions from the hearing allowing the traffic to go across from the bank and was it settled. Interim Community Development Director Zwerdlin.q stated it was settled and taken to the City Council; as an appealed item. The City Council backed up the need to provide that. Commissioner Vancil commented that he had updated information to add to the Commissioners Information Sheet. Interim Community Development Director Zwerdlin.q stated to Commissioner Vancil to forward the information to the administrative assistant and she can update the sheet. Commissioner Hutchison asked about the project on Carol Street and where the parking lot was located. Planning Commission Meeting December 8, 2005 11 Page 2 of 3 Interim Community Development Director ZwerdlinR informed that Randy Scott in the Public Works Department can be contacted in regards to follow-up. Latest information is that there is funding for the street improvement and now they are meeting with staff and working out the improvement. ADJOURNMENT Commissioner GrosJacques moved to adjourn the Planning Commission meeting; Commissioner Griqorieff seconded the motion. Meeting adjourned at 7:11 pm. APPROVED c~ / 2. CLAUDIO LIMA, CHAIRPERSON Date ATTEST "~ x-,~ z'~ ~--- '~'"-'~'-~'~[-~. ~/..- ~ Naomi Zwerdling J Interim Community Development ~rector City of Woodburn, Oregon Planning Commission Meeting December 8, 2005 13 Page 3 of 3 Minutes Woodburn Recreation and Parks Board Tuesday, January 10, 2006 7:00 p.m. DRAFT 8C m = Se Page 1 Call to Order Herb Mittmann, Board Chair called the meeting to order at 7 p.m. Roll Call Members present: Herb Mittmann, Board Chair; Member; Rosetta Wangerin, Board Secretary Ann Meyer, Member; Bruce Thomas, Member, Joseph Nicoletti, Member; Eric Yaillen, Member Absent: Cristal Sandoval Staff present: Randy Westrick, Paulette Zastoupil, A.A; Steven Newport, Facilities and Aquatics Manager, Steve Patterson, Recreation Services Manager. Board Reorganization The Board voted for Board Chair and Board Secretary positions for the year 2006. Herb Mittmann, was voted in for Board Chair and Rosetta Wangerin, for Board Secretary. Approval of Minutes from December 13, 2005. Motion to accept the minutes by Bruce Thomas, the motion was seconded by Herb Mittmann. Business from the Audience: None. Division Reports Aquatics - Steven Newport Steven reported that movie night was showing "Brother Bear" on Friday, January 13, 2006. He reported that there is now a TV in the weight reom. The pool heater problem is now fixed and the temperature is 86 degrees and 92 degrees in the baby pool. He shared with the Board that the 20% discount on season tickets has been canceled, with the season ticket offer still going well. Recreation and Leisure Services - Steve Patterson Steve reported that Winter/Spring registration was going, and gave a big thanks to the aquatics staff for their help in that area, Dance, Dance, Dance and Tumbling has started. Flyers have been distributed to all schools to extending youth basketball registration until January 13th. Both Youth/Teen Centers are busy. Dusky is in Washington DC at a Juvenile Council National Conference to network and gain grant opportunities. Staff has been helping with inventory and cleaning during the school winter break. Steve gave a big thank you to Johnny Guzman, Steve Gonzalez and Luis Perales for their hard work in implementing and maintaining the recreation programs. 13 Minutes Woodburn Recreation and Parks Board Tuesday, January 10, 2006 7:00 p.m. Parks and Facilities - Randy Westrick Randy reported that Centennial Park had flooding problems due to the unusually heavy rains and in part to the construction of the Water Plant. The flooding has been temporarily fixed with the city working on a permanent solution. Legion Park now has a flagpole, thanks to The American Legion, Woodburn Construction and Cougar Electric. Randy shared that the City Council passed a resolution to send the Mill Creek Greenway Plan to the Planning Commission to look over before they give the final approval. Organizational Workshop Conclusions Motion to adopt the report was made by Herb Mittmann and seconded by Joseph Nicoletti. Discussion by the Board as to how the playground facilities program process would get started this summer. Consensus by the Board was to have a park field trip in February and have Public Works do a safety inspection report of playground equipment. = Community Center Pre-design Consultant Herb Mittmann had two changes to make to the letter and Bruce Thomas would like the original survey added to the RFP. The Board agreed to accept the letter after changes were made. Future Board Meeting Dates The Board considered the meeting change, but decided to stay the same. The Board agreed to cancel the February meeting and they scheduled a field trip on February 11th to the city's parks. 10. Future Board Business · Field Trip- February 11,2006 · Next meeting - March 14, 2006 9. Board Comments None. Meeting adjourned at 7:45 PM Rosetta Wangerin, Board Secretary Date Paulette Zastoupil, Recording Secretary Date Page 2 14 8D U 0 0 o~ O~ oo 8E January 18, 2006 TO: FROM: SUBJECT: RECOMMENDATION: Receive the Repod BACKGROUND: Mayor and City Council through C,~ty Administrator Scott Russell, Chief of Police (~ Police Department Statistics - December 2005 The attached repod lists year to date repoded offenses and arrests displayed by month. The statistics Management comparison purposes. FINANCIAL IMPACT: None have been gathered from the Police Depadments Records System. The Previous year's statistics are also displayed for City Attorney ~¥1j''~)Financ~ Agenda Item Review: City Administrat~ 19 DATE: 1/1B/2006 PL6B60 TIME: 8:06:02 MONTHLY CRIMINAL OFFENSES FOR JANUARY THRU DECEMBER 2005 SCOTTRU ORI#: 0R0240500 WPD RESULTS FOR ALL OFFENSES CHARGE DESCRIPTION JAN FEB MAR ABR MAY JUN JLY AUG SEP OCT NOV DEC TOTAL AGGRAVATED ASSAULT I 3 2 3 3 2 2 2 i 3 3 1 AGGRAVATED MURDER 0 0 0 0 0 0 0 0 0 0 0 0 ANIMAL ORDINANCES 0 2 10 9 11 3 2 3 5 2 2 3 AI:LSON 1 0 0 1 i 0 0 i 0 0 1 0 ASSAULT SIM~LE 20 10 18 16 14 6 19 21 22 12 18 18 A'I-FEI~TED MURDER 0 0 0 0 0 0 0 0 0 I 0 0 BOIIB THREAT 0 0 0 0 0 0 0 0 0 0 0 0 BRIBERY 0 0 0 0 0 0 0 0 0 0 0 0 BURGI.J~RY - BUSINESS 7 5 4 1 6 13 1 2 3 2 0 2 BURGLARY - OTHER STRUCTURE 2 1 4 2 10 7 6 5 2 2 1 4 BURGLARY - RESIDENCE 14 5 12 11 15 20 19 12 14 10 8 6 CHILD ADBANDOMENT 0 0 0 0 0 0 0 0 0 0 0 0 CHILD NEGLECT 0 0 0 0 1 1 0 1 0 0 0 0 CITY ORDINANCE 2 1 5 2 2 5 4 9 3 2 0 4 CRIME DAMAGE-NO VANDALISM OR ARSON ~ 23 24 21 · 20 18 16 11 13 19 38 2B CURF~ 0 0 0 3 2 1 1 0 0 2 2 2 CUSTODIAL INTERFERENCE 0 0 0 0 0 0 0 1 0 0 0 0 CUSTODY - DETOX 1 5 1 3 2 1 3 2 2 1 2 2 CUSTODY - MATERIAL WITNESS 0 0 0 0 0 0 0 0 0 0 0 0 CUSTODY - MENTAL 0 0 0 1 3 0 1 2 2 2 2 2 CUSTODY - PROTECITVE 0 0 0 0 1 0 0 0 1 0 1 0 DISORDERLY CONDUCT 3 1 2 4 B 2 3 4 4 5 8 7 DOCUMENTATION 0 0 0 0 0 1 1 0 0 i 0 0 DRINKING IN PUBLIC 0 0 0 0 1 1 1 0 1 0 0 0 DRIVING UNDER INFLUENCE 4 9 8 6 13 10 11 8 12 6 9 6 DRUG LAW VIOLATIONS 6 10 7 13 12 18 19 10 16 12 13 19 DRUG PARAf~HERRAL IA 0 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 0 DWS/REVOKED-MISDEMEANOR I 2 2 4 9 3 8 5 5 3 2 1 ELUDE 0 2 4 3 1 1 1 1 3 0 3 1 EMBEZZLEMENT 0 0 0 1 1 2 0 1 0 0 0 1 ESCAPE FROM YOUR CUSTODY 0 0 0 0 0 1 0 0 0 1 0 0 EXTORTION/BLACKMAIL 0 0 0 0 0 0 0 0 0 0 0 0 FAIL TO DISPLAY OPERATORS LICENSE 4 I 3 I 4 3 5 3 3 3 7 5 FA~IILY-OTHER 0 0 1 0 0 0 0 0 0 0 0 0 FORCIBLE FLAPE 0 2 0 0 2 1 0 1 0 1 0 1 FORGERY/COUNTERFEITING 5 6 8 16 3 7 9 16 2 4 8 5 FRAUD - ACCOUNT CLOSED CHECK 0 0 0 0 1 I 0 0 0 0 0 0 FRAUD - BY DECEPTION/FALSE PRETENSES 0 2 2 0 0 0 0 0 0 0 0 1 FFUkUD - CREDIT CA.RD/AUTOIVUkTIC TELLER MACHINE 0 0 0 0 I 3 I 0 2 I 2 3 FRAUD- IMPERSONATION 1 2 2 3 2 2 2 5 1 0 2 5 FRAUD - NO ACCOUNT - CHECK 0 0 0 0 0 0 0 0 0 0 0 0 FRAUD - NOT SUFFICIENT FUNDS CHECK 0 0 0 0 0 0 0 0 0 0 0 0 FRAUD - OF SERVICES/FALSE PRETENSES 1 0 3 1 I 4 2 2 1 0 2 1 FRAUD - WELFARE 0 0 0 0 0 0 0 0 0 0 0 0 FRAUD - WIRE 0 0 0 0 0 0 0 0 0 0 1 0 FI:LAUD-OTHER 0 0 0 0 0 0 0 0 0 0 1 0 FUGITIVE ARREST FOR ANOTHER ,AGENCY 32 29 28 34 46 45 41 39 39 31 37 28 FURNISHING 1 0 0 0 0 0 0 1 0 1 8 0 GAMBLING - BOOKMAKING 0 0 0 0 0 0 0 0 0 0 0 0 GA~IBLING - GA~4ES 0 0 0 0 0 0 0 0 0 0 0 0 GAhlSLING - ILLEGAL DEVISES/MACHINES 0 0 0 0 0 0 0 0 0 0 0 0 26 0 52 5 194 1 0 0 46 46 146 0 3 39 265 13 1 25 0 15 3 51 3 4 102 155 0 0 45 2O 6 2 0 42 1 8 89 2 5 13 27 0 0 18 0 1 1 429 11 0 0 0 DATE: 1/18/2006 PL6B60 TIME: 8:06:02 MONTHLY CRIMINAL OFFENSES FOR JANUARY THRU DECEMBER 2005 SCOTTRU ORI#: 0R0240500 WPD RESULTS FOR ALL OFFENSES CHARGE DESCRIPTION JAN FEB MAR APR MAY JUN JLY AUG SEP OCT NOV DEC TOTAL G~J~BLING - ILLEC~kL PAY OFF O. 0 GA~qBLING - NUMBERS AND LOI-I'ERY 0 0 GA~E)LING - OTHER 0 0 GARBAGE LITTERING 0 1 HIT AND RUN FELONY 1 0 HIT AND RUN-MISDEFF. ANOR 14 8 ILLEGAL ALIEN - INS HOLD 0 0 ILLEGAL ESTABLISI'~4ENT 0 0 ILLEGAL LIQUOR-MAKE.SELL.POSSESS 0 0 I~lI~ LIQUOR 0 0 INTIMIDATION /OTHER CRIMINAL THREAT 2 0 JUSTIFIABLE HOMICIDE 0 0 KIDNAP - FOR ADDITIONAL CRIMINAL PURPOSE 0 0 KIDNA~ - FOR RANSOM 0 0 KIDNAP - HI-JACK.TERRORIST 0 0 KIDNA~ - HOSTAGE/SHIELD OR RF_JvlOVAI./DELAY WITNESS 0 0 LICENSING ORDINANCES 1 0 LIOUORLAW-OTHER 0 0 LIQUOR LICENSE VIOLATIONS 0 0 MINOR IN POSSESSION 2 3 MINOR ON PREMISES 0 0 MISCELLANEOUS 6 8 MOTOR VEHICLE THEFT 34 36 NEGLIGENT HOMICIDE - TRAFFIC 0 0 NEGLIGENT MANSLAUGHTER 0 0 NON CRIMINAL DOMESTIC DISTURBANCE 0 0 NON SUPPORT 0 0 OTHER 9 13 PARENTAL RESPONCIBILITY ORDINANCES (SVP) 0 0 PROPERTY - FOUND LOST MISIJkID 23 14 PROPERTY RECOVER FOR OTHER AGENCY 0 0 PROSTITUTION - COMPEL 0 0 PROSTITUTION - ENGAGE IN 0 0 PROSTITUTION - OTHER 0 0 PROSTITUTION - PROMOTE 0 0 PUBLIC HEALTH AND SAFETY ORDINANCES 13 12 RECKLESS DRIVING 0 0 ROBBERY - BANK 0 0 ROBBERY - BUSINESS 2 1 ROBBERY - CAR JACKING 1 0 ROBBERY - CONV.STORE 0 0 ROBBERY - HIGICWAY 0 0 ROBBERY - OTHER 1 0 ROBBERY - RESIDENCE 1 0 ROBBERY - SERVICE STATION 0 0 RUNAWAY 7 10 SEX CRIME - CONTRIBUTE TO SEX DELINQUENCY 0 0 SEX CRIME - EXPOSER 0 0 SEX CRIME - FORCIBLE SODOMY 0 0 SEX CRIME - INCEST 0 0 SEX CRIME - MOLEST (PHYSICAL) 0 1 SEX CRIME - NON FORCE SODOMY 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 i i I i i 3 1 2 0 0 12 2 0 I 0 0 i 0 1 0 2 8 12 6 15 17 12 15 10 15 17 18 '159 0 0 0 0 0 i 1 0 0 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3 5 I 2 5 3 4 2 1 1 29 0 0 0 0 0 0 0 0 0 0 0 1 0 0 2 0 1 2 2 2 0 10 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 I 0 0 0 0 0 0 2 0 0 0 0 0 0 1 0 0 0 1 0 0 0 0 0 0 0 0 0 0 1 1 2 1 2 1 3 2 4 1 23 0 0 0 0 0 0 0 0 0 0 0 3 6 6 11 11 13 5 8 6 4 87 13 6 11 8 15 9 14 23 12 10 191 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2 I 0 0 0 0 0 0 0 3 12 3 10 18 16 4 7 5 10 15 122 0 0 0 0 0 0 0 0 0 0 0 21 25 31 34 35 31 32 20 25 18 309 0 0 0 0 1 1 2 1 1 0 6 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 6 10 99 32 14 16 5 6 7 11 231 I 2 2 1 2 2 2 0 0 I 13 0 0 0 0 0 0 0 1 0 1 2 0 I 0 i 0 0 1 2 0 0 8 0 0 0 1 0 0 0 0 0 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 I I 2 0 1 0 0 1 0 7 0 0 0 0 0 0 0 0 0 1 2 0 0 0 0 0 0 0 0 0 0 0 6 11 8 13 7 13 16 8 10 4 113 I 0 0 0 i 2 1 1 0 0 6 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 1 0 0 0 0 2 1 0 0 0 0 0 0 0 0 0 1 0 2 0 2 5 1 3 2 5 2 23 0 0 0 0 0 0 0 0 0 0 DATE: 1t18/2006 PL6860 TItqE: B:06:02 MONTHLY CRIMINAL OFFENSES FOR JANUARY THRU DECEMBER 2005 SCOTTRU ORI#: 0R0240500 WPD RESULTS FOR ALL OFFENSES CH~GE DESCRIPTION jAN FEB MAR APR MAY JUN JLY AUG SEP OCT NOV DEC TOTAL SEX CRIME - NON-FORCE P~E 0 4 0 0 1 0 0 0 0 0 0 1 6 SEX CRIME - OBSCENE PHONE CALL 0 i 0 0 0 0 0 0 0 0 0 0 1 SEX CRIME - OTHER 0 0 0 0 0 0 0 0 1 0 0 0 1 SEX CRIME - PEEPING TOM 0 0 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 0 0 SEX CRIME - SEXUAL ASSAULT WITH AN OBJECT 0 1 0 0 0 1 0 0 0 0 0 0 2 STALKER 0 0 0 0 0 0 0 0 0 0 0 0 0 STOLEN PROPERTY - RECEIVING,BUYING,POSSESSING 0 3 0 1 0 0 2 1 0 0 0 2 9 SUICIDE 0 I 0 0 0 0 1 0 I 0 0 2 5 THEFT - BICYCLE 3 1 1 2 6 8 7 9 2 7 8 4 58 THEFT - BUILDING 2 3 3 4 3 4 2 0 2 0 1 4 28 THEFT - COIN OP MACHINE 0 0 1 0 0 0 0 0 O 0 0 0 1 THEFT - FROM MOTOR VEHICLE 27 25 26 31 29 34 22 12 18 27 64 39 354 THEFT - MOTOR VEHICLE PARTS/ACCESSORIES 19 13 11 6 0 1 4 1 0 7 20 12 94 THEFT - OTHER 15 12 24 12 25 21 22 25 16 24 19 17 233 THEFT - PICKPOCKET 0 0 0 0 1 0 0 0 0 0 i 1 3 THEFT - PURSE SNATCH 2 0 i 0 0 2 0 0 I 1 0 0 7 THEFT - SHOPLIFT 14 4 9 9 15 18 14 20 13 12 8 6 142 TP. AFFIC ORDINANCES 0 2 1 0 0 0 0 0 2 0 0 0 5 TP~FIC VIOLATIONS 21 15 9 6 9 14 8 16 6 4 17 10 135 TRESPASS 4 7 4 9 6 7 7 8 4 3 6 7 72 UNKN~ 0 0 O 0 0 0 0 0 0 0 0 0 0 VANDALISM 56 43 46 36 41 35 30 38 31 28 44 32 460 VEHICLE RECOVERD FOR OTHER AGENCY 7 11 4 4 0 4 2 3 3 4 2 1 45 WARR~T ARREST FOR OUR AGENCY 2 1 1 1 0 1 1 0 2 6 2 1 18 WEAPON - CARRY CONCEALED I 1 1 0 1 2 0 2 1 1 2 1 13 WEAPON - EX FELON IN POSSESSION I 1 0 0 0 0 1 0 2 0 1 0 6 WEAPON - OTHER 0 0 0 0 0 0 0 0 0 0 0 0 0 WEAPON - POSSESS ILLEGAL 0 3 0 2 1 0 2 2 3 1 1 3 18 WEAPON - SHOOTING IN PROHIBITED A2EA 0 0 0 0 0 0 0 0 0 0 0 0 0 WILLFUL MURDER 0 0 0 0 0 0 0 0 0 0 0 0 0 ZONING ORDINANCE 1 3 1 3 5 3 1 2 0 3 1 1 24 TOTAl_: 432 384 377 368 529 484 431 426 375 356 479 389 5030 2005 TOTAL: 432 384 377 368 529 484 431 426 375 356 479 389 5030 2004 TOTAL: 641 543 575 495 495 445 359 409 396 340 355 364 5317 2003 TOTAL: 520 360 437 459 567 570 470 542 523 678 582 554 6262 :32 DATE: 1/18/2006 PL6850 TIME: 8:05:25 MONTHLY ARRESTS BY OFFENSE FOR JANUARY THRU DECEMBER 2005 SCOTTRU ORI#: 0R0240500 WPD RESULTS FOR ALL CHARGES CH,a.RGE DESCRIPTION JAN FEB MAR APR MAY JUN JLY AUG SEP OCT NOV DEC TOTAL AGGRAVATED ASSAULT 1 2 3 2 1 0 1 1 0 4 3 4 22 AGGRAVATED MURDER 0 0 0 0 0 0 0 0 0 0 0 0 0 ANIMAL ORDINANCES 0 1 0 1 0 0 I 0 0 0 0 0 3 ARSON 0 I 0 0 0 0 0 0 0 0 0 0 1 ASSAULT SIMPLE 14 9 10 12 15 8 16 17 20 14 15 14 164 ATTEMPTED MURDER 0 0 0 0 0 0 0 0 0 2 0 0 2 BOMB THREAT 0 0 0 0 0 0 0 0 0 0 0 0 0 BURGLARY - BUSINESS 0 0 1 0 3 0 0 0 3 0 0 0 7 BURGLARY - OTHER STRUCTURE 0 0 1 0 0 0 0 0 0 0 0 0 1 BURGLARY - RESIDENCE 0 4 0 6 0 4 9 3 1 6 1 6 40 CHILD ADBANDOMENT 0 0 0 0 0 O 0 0 0 0 0 0 0 CHILD NEGLECT 0 0 0 0 2 1 0 1 0 0 0 0 4 CITY ORDINANCE 0 0 0 0 0 1 0 2 0 0 0 0 3 CRIME DAMAGE-NO VANDALISM OR ARSON 0 1 4 4 2 1 3 2 3 2 2 0 24 CURFEW 0 0 0 4 3 6 I 0 0 3 4 2 23 CUSTODIAL INTERFERENCE 0 0 0 0 0 0 0 1 0 0 0 0 1 CUSTODY - DETOX 1 7 1 3 2 I 2 2 2 I 2 2 26 CUSTODY - MENTAL 0 0 0 1 1 0 i 2 2 2 2 2 13 CUSTODY - PROTECITVE 0 0 0 0 1 I 0 0 1 0 1 0 4 DISORDERLY CONDUCT 4 2 1 9 11 2 2 3 B 9 21 8 80 DOCLI4ENTATION 0 0 0 0 0 0 0 0 0 0 0 0 0 DRINKING IN PUBLIC 0 O 0 0 1 1 1 0 I O 0 0 4 DRIVING UNDER INFLUENCE 4 9 8 6 13 10 11 8 12 5 9 6 101 DRUG LAW VIOLATIONS 5 9 7 13 17 19 24 12 22 14 17 25 184 DRUG PARAPHERNALIA 0 0 0 0 0 0 0 0 0 0 0 0 0 DWS/REVOKED - FELONY 0 0 0 0 0 0 1 0 0 0 0 0 1 . DWS/REVOKED- MI SDEMEANOR 1 2 3 4 9 3 6 5 5 3 2 2 45 ELUDE 0 1 4 3 0 2 2 1 1 0 1 2 17 EMBEZZLEMENT 0 D 0 0 0 2 0 0 0 0 0 0 2 ESCAPE FRO~t YOUR CUSTODY 0 0 0 1 0 1 0 0 0 1 0 0 3 EXTORTION/BLACKI4AIL 0 0 0 0 0 0 0 0 0 0 0 0 0 FAIL TO DISPLAY OPERATORS LICENSE 4 I 2 1 3 3 5 4 3 3 6 6 41 FAMILY-OTHER 0 0 0 0 0 0 0 0 0 0 0 0 0 FORCIBLE RAPE 0 0 0 I 0 0 0 2 0 0 0 1 4 FORGERY/COUNTERFEITING I 0 1 9 2 7 5 13 2 4 2 6 52 FRAUD - ACCOUNT CLOSED CHECK 0 0 0 0 0 0 0 0 0 0 0 0 0 FRAUD - BY DECEPTION/FALSE PRETENSES 0 0 0 0 0 1 0 0 0 0 0 0 1 FRAUD - CREDIT CARD/AUTOlt~TIC TELLER MACHINE 0 0 0 0 0 1 1 0 0 0 0 1 3 FRAUD - IMPERSONATION 3 3 0 0 0 2 2 2 1 1 0 5 19 FFUkUD - NOT SUFFICIENT FUNDS CHECK 0 0 0 0 O 0 0 0 0 0 0 0 0 FP~AUD - OF SERVICES/FALSE PRETENSES 0 0 0 0 0 2 1 0 0 0 0 0 3 FRAUD - WIRE 0 0 0 0 0 0 0 0 0 0 0 D 0 FRAUD-OTHER 0 0 0 0 0 0 0 0 0 0 0 0 0 FUGITIVE ARREST FOR ANOTHER AGENCY 34 28 27 40 49 48 41 44 37 37 37 32 454 FURNISHING 1 0 0 0 1 0 0 i 0 1 9 0 13 GAI,IBLING - GAMES 0 0 0 0 0 0 0 0 0 0 0 0 0 GAMBLING - OTHER 0 0 0 0 0 0 0 0 0 0 0 0 0 GARBAGE LITTERING 0 1 0 1 2 1 1 2 1 2 0 D 11 HIT AND RUN FELONY 0 0 I 0 0 0 0 0 0 0 0 1 2 HIT AND RUN-MISDEMEANOR 2 1 2 2 3 4 1 1 0 1 5 4 26 ILLEGAL ALIEN - INS HOLD 0 0 0 0 0 0 0 1 1 0 0 0 2 INTIMIDATION /OTHER CRIMINAL THREAT 0 i 1 8 1 2 6 7 0 4 3 8 41 2;3 u~t: I/IU/ZUUb PL6850 TIME: 8:05:25 MONTHLY ARRESTS BY OFFENSE FOR JANUARY THRU DECEMBER 2005 SCO1-FRU ORI#: 0R0240500 WPD RESULTS FOR ALL CHARGES CI-La, RGE DESCRIPTION JAN FEB MAR APR MAY JUN JLYAUG SEP OCT NOV DEC TOTAL KIDNAP - FOR ADDITIONAL CRIMINAL PURPOSE KIDNAP - FOR RANSOM KIDNAP - HI-JACK.TERRORIST KIDNAP - HOSTAGE/SHIELD OR REMDVAL/DELAY WITNESS LICENSING ORDINANCES LIQUOR LAW-OTHER LIQUOR LICENSE VIOLATIONS MINOR IN POSSESSION mINOR ON PREMISES MISCELLANEOUS ROTOR VEHICLE THEFT NEGLIGENT HOMICIDE - TRAFFIC NEGLIGENT MANSLAUGHTER NON CRIMINAL DOMESTIC DISTURBANCE OTHER PROPERTY - FOUND LOST MISLAID PROPERTY RECOVER FOR OTHER AGENCY PROSTITUTION - COMPEL PROSTITUTION - ENGAGE IN PROSTITUTION - PROHOTE PUBLIC HEALTH AND .S~J:ETY ORDINANCES RECKLESS DRIVING ROBBERY - BANK ROBBERY - BUSINESS ROBBERY - CA. R jACKING ROBBERY - CONV.STORE ROBBERY - HIGHWAY ROBBERY - OTHER ROBBERY - RESIDENCE ROBBERY - SERVICE STATION RUNAbLAY SEX CRIME - CONTRIBUTE TO SEX DELINQUENCY SEX CRIME - EXPOSER SEX CRIME - FORCIBLE SODOMY SEX CRIME - INCEST SEX CRIME - MOLEST (PHYSICAL) SEX CRIME - NON FORCE SODO~IY SEX CRIME - NON-FORCE RAPE SEX CRIME - OBSCENE PHONE CALL SEX CRIME - OTHER SEX CRIME - PORNOGRAPHY/OBSCENE MATERIAL SEX CRIME - SEXUAL ASSAULT WITH AN ODJECT STALKER STOLEN PROPERTY - RECEIVING.BUYING.POSSESSING SUICIDE THEFT - BICYCLE THEFT - BUILDING THEFT - CDIN OP MACHINE THEFT - FROM MOTOR VEHICLE THEFT - MOTOR VEHICLE PARTS/ACCESSORIES THEFT - OTHER THEFT - PICKPOCKET 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 2 0 5 I I 4 I 2 2 3 3 12 1 0 0 0 0 0 0 0 0 0 0 0 3 0 0 0 0 0 i 0 0 0 0 3 1 2 1 3 1 3 2 0 2 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 6 16 12 9 7 14 8 9 6 7 18 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2 2 2 2 2 2 2 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 i 0 2 0 0 i i 0 0 o o o o 1 o o o o o o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O 0 0 0 0 O 0 0 O 0 0 0 2 0 0 0 0 0 0 0 0 0 0 0 1 1 1 0 1 0 4 3 1 3 1 0 0 1 0 0 0 1 0 0 0 0 D 0 1 0 0 0 0 0 0 0 0 0 0 1 1 0 0 1 0 0 0 1 0 0 1 0 0 0 0 0 0 0 0 0 1 0 0 0 1 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 i 0 0 0 0 0 0 0 0 0 I 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 7 1 1 0 0 4 2 6 4 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 1 2 0 1 0 i I 2 3 0 0 0 0 0 0 0 0 0 0 O 0 0 0 0 0 3 13 4 1 0 0 O 4 0 0 0 0 0 0 0 0 0 0 0 0 I 4 3 6 5 8 2 4 3 1 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 1 2 43 0 4 20 0 0 0 117 0 2 0 0 0 0 15 0 7 1 0 0 0 2 0 17 2 1 4 0 1 I 4 0 0 0 2 0 0 0 1 0 1 0 0 0 0 3 29 0 1 0 4 2 9 0 0 0 25 0 0 5 43 0 0 24. DATE: 1/18/2006 PL6850 TIME: 8:05:25 MONTHLY ARRESTS BY OFFENSE FOR JANUARY THRU DECEMBER 2005 SCOTTRU ORI#: 0R0240500 WPD RESULTS FOR ALL CHARGES CHARGE DESCRIPTION JAN FEB MAR APR MAY JUN JLY AUG SEP OCT NOV DEC TOTAL THEFT - PURSE SNATCH THEFT - SHOPLIFT TRAFFIC ORDINANCES TP, AFF IC VIOLATIONS TRESPASS VANDALI~ VEHICLE RECOVERD FOR OTHER AGENCY WARRANT ARREST FOR OUR AGENCY WEAPON - CARRY CONCEALED WEAPON - EX FELON IN POSSESSION WEAPON - OTHER WEAPON - POSSESS ILLEGAL WEAPON - SHOOTING IN PROHIBITED AREA WILLFUL MURDER ZONING ORDINANCE i 0 0 0 0 0 0 0 0 0 0 0 1 14 3 7 10 15 19 12 22 11 11 8 9 0 0 0 0 0 0 0 0 0 0 0 0 0 16 14 12 25 46 37 26 42 24 21 26 35 324 2 10 5 14 4 10 10 11 4 3 7 7 87 1 1 1 12 2 2 5 3 2 3 3 11 46 0 I 0 3 0 0 0 0 0 0 0 0 4 I 1 1 1 0 2 1 0 0 5 2 I 15 I i 1 0 I 2 0 2 I I 2 I 12 0 2 0 0 0 0 I 0 2 0 1 0 6 0 0 0 0 0 - 0 I 0 0 0 0 0 1 0 2 0 2 3 2 3 2 5 4 0 5 28 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2005 TOTAL: 129 148 144 234 240 231 237 251 210 187 218 243 2472 2004 TOTAL: 208 194 21B 195 196 221 162 198 193 172 144 184 2285 2003 TOTAL: 202 148 164 190 221 196 230 214 174 196 191 241 2367 8F Recreation Services Division Attendance Report November-05 ITo ,. o.I Service lUn~ Attendance Hours Youth Services After School Club - LINCOLN 1840 54 99360 After School Club - WASHINGTON 1739 54 93906 Teen Scene - LEGION 704 72 50688 Teen Scene - SETTLEMIER 425 72 30600 Other - Indicate 0 Total Youth Services 4708 ~:~ 274554 Youth Sports Ilndicate Indicate Total Youth Sports Youth Classes Dance Dance Dance Martial Arts Total Youth Classes 1691169~° 051 84ji Adult Services IActive Adult Trip{s) Indicate Total Adult Services Adult Sports 481 61 ~o81 oI .... _oj oI 18~~ IAdult Basketball Indicate Total Adult Sports 115210 4810 552906I 1152~~ 552961 Special Events ITeen Dance Indicate Total Special Events 0/~ ~ 01 1 so 3ooI Other Services Athletic Field Rentals 0 0 0 Indicate 0 0 0 Indicate 0 0 0 Total Other Services 0 0 ~ Total Attendance Recreation I~i ~'~-.~ U nits TOTALS: 26 Recreation Services Division Attendance Report December-05 Service Total Recreatto~I Un~ (A~ndanc~I Attendance Hours x Service Hours)~ / Youth Services After School Club - LINCOLN 1138 33 37554 After School Club - WASHINGTON 1149 33 37917 Teen Scene- LEGION 518 I 518 Teen Scene - SETTLEMIER 238 1 238 Other - Indicate 0 Total Youth Services 3043 76227 Youth Sports Ilndicate Indicate Total Youth Sports o 0 I Youth Classes IDance Dance Dance Martial Arts Total Youth Classes Adult Services IActiveAdult Trip(s) I 141 71 9(~1 Indicate 0b ~.~_~° Total Adult Services t4~~ 98~ Adult Sports Adult Basketball indicate Total Adult Sports Special Events ITeen Dance 2005 Christmas Tree Li~htin~l Total SPecial Events 1 O0 300 1 O0 300 ~ Other Services Athletic Field Rentals 0 0 0 Indicate 0 0 0 Indicate 0 0 0 Total Other Services 0 0 3589 i~~ 79361 ~i~ ; '~' ~ Total Attendance ~ . ~ Recreation ~ ~ Units TOTALS: 27 8G Fall 2005 Recreation Services Revenue Report January-06 Enrolled in Program REVENUES Youth Services After School Club - LINCOLN 125 $ 1,425.00 After School Club - WASHINGTON 125 $ 2,175.00 Teen Scene - LEGION 80 $ - Teen Scene - SETTLEMIER 80 $ - Other - Indicate 0 $ - Total Youth Services 4t0 $ 3,600.00 Youth Sports 0[ $ 5,325.00 0 $ 200.00 0 $ 5,525.00 IYouth Basketball- Registration Info Youth Flag Football Total Youth Sports Youth Classes Dance Dance Dance } 2811 $ 6,492.80 Martial Arts I 271 $ 675.00 Total Youth Classes 3081 $ 7,167.80 Adult Services Total Adult Services 561 $ 336.00 Adult Sports Adult Basketball Jamboree Total Adult Sports 2961 $ 13,225.00 200.00 13,425.00 Special Events ITeen Dance Ilndicate 0 $ ITotal Special Events 0 $ OtherServicas indicate 0 $ Indicate 0 $ Indicate 0 $ Total Other Services 0 $ 1070 $ 30,053.80 Total Total Fall 2005 Enrollments Session Revenues TOTALS: 28 WOODBURN 8I January 23, 2006 TO: FROM: SUBJECT: Honorable Mayor and City Council John C. Brown, City Administrator Public Hearing, Proposed Sale of Property to Habitat for Humanity RECOMMENDATION: Receive the report. BACKGROUND AND DISCUSSION: A public hearing announcement to consider the sale of real property to the Habitat for Humanity on January 23 2006 was included in your January 9, 2006 agenda. This item could not be properly noticed, and is not included on tonight's agenda. The hearing notice format for sale of public property requires a description of the property to be sold. As you may recall, the property in question has been created by lot line adjustment from a larger parcel. Although the Community Development Director has approved the lot line adjustment, the survey needed to record the new parcel has not been completed. As such, a legal description of the property is not available for purposes of notice. The survey is being conducted and paid by the Habitat for Humanity, and should be completed within two to three weeks. Once the parcel can be legally described, the hearing will be noticed and scheduled for Council consideration. JCB Agenda Item Review: City Administrator 30 City Attorney ~ Finance'/.=~)~ W..OODBUI N January 23, 2006 TO: FROM: SUBJECT: Honorable Mayor and City Council John C. Brown, City Administrator Union Pacific Pipeline Crossing Agreement RECOMMENDATION: It is recommended the City Council: 1). Remove the item from the table for consideration and decision; and 2). Approve and authorize the City Administrator to execute a Pipeline Crossing Agreement with Union Pacific Railroad, as presented, with the understanding that construction of a safety manhole may be added in the agreement. BACKGROUND: This item was introduced to City Council on August 8, 2005 (Attachment 1) and was tabled pending additional staff analysis. Council raised concerns regarding Union Pacific's (UP's) processing charge, and UP's right to terminate the agreement with only 30 days notice. The Council asked Public Works staff to investigate the potential for a non-revocable license or a longer notice period; legal staff was asked to investigate the City's authority to condemn railroad property. That information was presented at the Council's August 22, 2005 meeting (Attachment 2). Based on agreements between UP and other jurisdictions, principally the City of Salem, staff determined UP will modify the termination provision to provide for more than 30 days notice. Staff advised the agreement reflects "standard" language included in all our recent line crossing agreements. Staff also advised that the railroad has not historically asked the City to relocate any utility crossing the rail line. The City Attorney reported that the City has condemnation authority, but advised the City's ability to successfully condemn railroad property could be made more difficult by how the railroad holds title to the Agenda Item Review: City Administrate' 31 City Attorney Financ~./~ Honorable Mayor and City Council January 23, 2006 Page 2 property. The item was again tabled, to provide for additional staff investigation and analysis. The matter was discussed again on October 24 and November 28, 2005 (Attachments 3 and 4, respectively) to address Council questions regarding: the potential for obtaining an easement from UP; whether UP holds fee title or an easement to the land in question; the nature of the agreement between ODOT and the railroad related to Highway 214; and the duration and terms of line crossing agreements between UP and other jurisdictions and utilities. Staff reported that UP does not grant easements. Staff was unable to obtain a line crossing agreement relative to Highway 214, but reported that it learned ODOT's policy is to accept the railroad's standard agreement. Staff also found that the standard agreement is accepted by a variety of jurisdictions and the gas and electric utilities. Staff found only one instance where the termination provision was invoked. In that circumstance, PGE indicated that UP assisted it with its relocation efforts. The City Attorney, based on a review of title information indicated that UP holds the property in question in fee title. The item was tabled again, and the Council asked the City Attorney to provide additional information regarding the potential cost of condemnation proceedings, and to detail what those proceedings entails. In addition to the information requested by the City Council, I requested Public Works staff to continue to investigate the line crossing agreements negotiated by other, larger, jurisdictions, to determine if those jurisdictions had been able to negotiate more favorable terms. I also asked staff to inventory the number of line crossing agreements currently in effect between the City and UP. I felt this information might be useful in indicating the City's potential exposure to retaliation, if we were to initiate a condemnation proceeding. DISCUSSION: Current reports, responding to City Council's and my inquiries, prepared by the City Attorney and the Public Works department, are included as Attachments 5 and 6, respectively. As the City Attorney indicates, we can expect the condemnation process to be involved and costly. Although the Council discussed limiting cost exposure by utilizing the City Attorney to condemn railroad property, the cost estimate of $50-70,000 anticipates retaining a condemnation attorney to represent the City. The Attorney's workload has grown and the Council has agreed he requires the help of a full-time assistant. An assistant recruitment is underway, but that individual will not be on board for some months yet, and will require time to acclimatize. In the meanwhile we 32 Honorable Mayor and City Council January 23, 2006 Page 3 have only one attorney to address the City's legal needs; and these will suffer if his attention is drawn to the contemplated condemnation. Specialized representation is also recommended, if this course of action is taken, to place the City on more even footing with UP (which we can expect to expend great resources to protect its interests here, and in other Oregon communities). As noted in the Attorney's report, the cost estimate does not include the cost of just compensation for the property, the cost of an appeal, or attorneys fees that could be awarded UP if a jury were to find that the City's offer of just compensation too Iow. Because of these cost considerations, and a Iow likelihood that UP will ask the City to vacate the line crossing, initiating condemnation is not recommended at this time. The information gathered by Public Works indicates UP is willing to negotiate a longer notice of termination period. It also suggests that UP may, for a price, modify license agreements to make them more permanent. It was also suggested by one city that UP might sell the City an easement. Based on that information, I contacted UP to explore these alternatives in greater detail. I spoke with the manager responsible for real estate and utility crossings in much of the western United States. He confirmed that UP will not grant or sell the City an easement. He indicated that policy is intended to insure UP property will be available to them, without complication or additional expense, if they need it for a future project. He indicated UP would be willing to extend the notice of termination provision for Woodburn, to a maximum of 180 days. He advised if UP undertakes a project that would trigger the termination provision, as a practical matter, they would begin working with a jurisdiction well in advance of the standard 30-day notice of termination to seek relocation alternatives as part of the planning process. He also indicated that UP has not, in his experience, ever invoked the termination clause in any of its line crossing agreements. Finally, he stated that UP would allow us to remove the 30-day notice provision from the language of the agreement, for an additional fee of $500. This is similar to an arrangement bargained, at much greater cost, with the City of Portland. With respect to these options, given UP's comments regarding informal advance notice, there appears to be little benefit to extending the termination provision to 180 days. An extension of the formal notice period will most likely overlap rather than augment any informal notice we might receive, and daes not affer sufficient time to design, engineer, bid-out, and relocate the storm drain in question. And, as has previously been pointed out by the Public Works Director, Honorable Mayor and City Council January 23, 2006 Page 4 a longer term may be seen as more reasonable by a coud, and work against the City if we had to challenge the termination. There also appears to be little benefit to paying an additional $500 to strike the notice language. UP indicated its position would be, that unless the agreement was terminated due to default, removing the notice provision creates a non-revocable license. UP's statements notwithstanding the license granted by the agreement appears, based on other provisions, to be revocable. For these reasons, neither of these alternatives is recommended. An alternative that has not been publicly discussed is to execute the standard agreement now, and move to condemn the property if the need arises. The public necessity required for condemnation may be difficult to prove at the present time because UP has not refused to allow us to cross its line. The line crossing agreement creates an option that the City may exercise, despite any misgivings about its term. Once our facility is in place, and if it is threatened by relocation, a more compelling argument for public necessity may be made. In the City Attorney's opinion, and that of independent condemnation counsel, executing the standard agreement would not preclude, or weaken, a future condemnation action. Given the Iow likelihood that UP will terminate the agreement, and higher costs attendant to some of the other alternatives that have been discussed, and the opinions of the attorneys, I recommend this alternative. FINANCIAL IMPACT: The cost of the recommended action is estimated at $2,400, which represents UP's agreement processing fee. Other alternatives are $2,900 to strike the notice language from the agreement, and a Iow estimate of $50-70,000 associated with condemnation. JCB Attachments 1 through 6 ATTACHMENT Page I_ of August 2, 2005 TO: FROM: SUBJECT: Honorable Mayor and City Council through City Administrator David Torge~,~ant City Engineer, through Dlr~ Works UPRR Plpellne Crossing Agreement RECOMMENDATION: Authorize the City Administrator execute a Pipeline Crossing Agreement with Unlon Pacific Railroad. BACKGROUND: A regional stormwater detention fadlity (an approved CIP project) will be construcf~:t on City-owned property west of Settlemler Avenue, south of Smith Addition. Hydraulic studies performed in connection with the d~ign indicate that additional capacity Is needed in conveyance facllffles downstream. The link betwccn Sefflemler and Front Street will be Improved by construction of an open swale near the south line of the city park. The new swale will act in concert with the existing buried pipe to provide needed capacity. A new 24-inch pipe will provide the required capacity east of the park. It will cross Front Sfreet, UPRR, and Ogle Sfreet before discharging to a tributary of Mill Creek. The new pipe will be in a casing, and will be constructed parallel to the existing pipe. The Union Pacific Railroad (UPRR) has certain requirements for construction in their fight-of-way. An application was tendered April 22, 2005. Documents were provided by UPRR on May 10, 2005. Completion of the Agrccment will involve return of executed original documents, payment of a $2,400 license fee, and execution and return of Contractor's Right of Entry Agreement. (The laffer to be accomplished after a contractor has been engaged by the City.) The City's insurance underwriter has reviewed the Agreement. the document were recommended as a result ./el that review. Agenda Item Revlew: City Adminlstrat~..~G/~ City Attorney No changes in Finance ~ 35 Honorable Mayor and City Council August 2, 2005 Page 2 ATTACHMENT.,_._~. DISCUSSION: Agreement is necessary for work to proceed. Construction will occur in spring 200&, after easements are obtained, clearance from Oregon DSL and US Army Corps of Engineers is secured,and final design is completed. FINANCIAL IMPACt: Fee of $2,400 will be paid from budget established for CIP project. Total estimated cost of the construction (occurring later) is $190,000. 36 pi_ X 940206 Form Aj~proved, AVP.Law ATTACHMENT_ Page~ of Folder No. 02321-68 PIPELINE CROSSING AGREEMENT Mile Post: 734.93, Brooklyn Subdivision/Branch Location: Woodbum, Marion County, Oregon THIS AGREEMENT is made and entered into as of May 10, 2005, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, (hereinafter the "Licensor") and CITY OF WOODBURN, an Oregon municipal corporation to be addressed at 270 Montgomery St., Woodbum, Oregon 97071 (hereinafter the "Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article !. LICENSE FEE Upon execution of this Agreement, the Licensee shall pay to the Licensor a one-time License Fee of Two Thousand Four Hundred Dollars (S2,400.00). Article !I. LICENSOR GRANTS RIGHT. In consideration of the License Fee to be paid by the Licensee and in further consideration of thc covcnanta and agrccmenta hercin contained to be by the Licensee kept, observed and performed, the Licensor hereby ~-ants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate only a 24 inch storm water pipeline crossing (hereinafter the "Pipeline") in the location shown and in conformity with the dimensions and specifications indicated on the attached print dated May 05, 2005, marked Exhibit A. Under no circumstances shall Licensee modify the use of the Pipeline for a purpose other than the above-mentioned, and said Pipeline shall not be used for any other use, whether such use is currently technologically possible, or whether such use may come into existence during thc life of this Agreement. Article III. CONSTRUCTION, MAINTENANCE AND OPERATION. Thc grant of right herein made to thc Licensee is subject to each and all of thc terms, provisions, conditions, limitations and covenants set forth hcrcin and in Exhibit B, hercto attached. Article IV. IF WORK IS TO BE PERFORMED BY CONTRACTOR. If a contractor is to do any of thc work performed on thc Pipeline (including inilial construction and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its contractor to execute the Railroad's form Contractor's Right of Entry Agreement. Licensee acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its tcrrns, provisions, and requirements, and will inform its contractor of the need to execute the Agreement. Under no circumstances will Licensee's contractor bc allowed onto Licensor's premises without first executing the Contractor's Right of Entry Agreement. Article V. INSURANCE A. Thc Licensee, at its expense, shall obtain the insurance described in Exhibit B-l, hereto attached. The Licensee will also provide to the Licensor a Certificate of Insurance, identifying Folder No. 02321-68, issued by its insurance carrier confirming thc existence of such insurance and that thc policy or policies contain the following endorsement: UNION PACIFIC RAILROAD COMPANY is named as an additional insured with respect to all liabilities arising out of the existence, use or any work performed on or associated with the 'Pipeline' located on Railroad fight-of-way at Mile Post 734.93, on the Brooklyn Subdivision/Branch, at or near Woodbum, Marion County, Oregon. B. If the Licensee named in this Agreement is a publi~ entity subject to any applicable statutory tort laws, the limits of insurance described in Exhibit B-I shall be the limits the Licensee then has in effect or which is required by applicable current or subsequent law, whichever is greater, a portion of which nuy be self-insured with the consent and approval of the Licensor C. All insurance correspondence shall be directed to: Jon E. Devish Folder No. 02321-68 Union Pacific Railroad Company Real Estate Department 1400 Douglas Street STOP 1690 Omaha, NE 68179-1690 Article Vl. TERM. This Agreement shall tske effect as of the date first herein written and shall continue in full force and effect until terminated as herein provided. Article VI. SPECIAL PROVISONS 1. The reinforced concrete pipe must be Class III minimum. 2. A railroad inspector is required to monitor the ground and track for movement during the jacking process. The installation process and all train movement must be immediately stopped if any movement is detected. The damaged area must be immediately repaired. The installation process must be reviewed and modified as required before thc installation may proceed. Applicant must pay inspector's expense. ATTACHMENT .... I' Page_"~ of, ~'~ . IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written, UNION PACIFIC RAILROAD COMPANY CITY OF WOODBURN By: By: Manager - Contracts Title: 39 r. .CE ARROR INDICATING NORTH FORM 0R-0404-B ol.~CT,O..EL,,IvE ,0 C.0,SI.O ENCASED NON'FLAMMABLE .Ev. ,:-,-o, "' ATT~H~ENT~ PIPELINE CROSSING of ~ ~ · , · ..... / F~~/, . , L L . ~-,~,,? .... ~'~7'", , ~ / I .... A .....~'~-;.,~'~, ,;~ ...... ~.. ~..;.,'~ / I / I '-~a.~r-'. '--~,~'~,~ ~-" / I / ~ ', I ......... A) IS PIPELIK ¢KSSIK WI~IN OBICAT~ STREET ? YEM X 8) 1~ Y[~ H~ 0F STREET Cl DISTKI~TI~ LiN[ 0R TRAN~ISSI~ Ol CARRIER elPE S C~ITY ID BE CONVEYEOBTORMWATER . ~[RAT lng PRES~~PS I W~L THICKNESS 3 ~? ~DI~TER~;~TERIAL~ [) Ci~i~ PI~ I ~TBIOE 01~TER ~ C~l~ PiPE ~ INT~I~ Ol~T~ ¢ASl~ PIPt. ~CH F~NISHING OIMENSI~ GIVE C~RIER PiP[ ~ INSIDE ~ CASING PIP~ Fl ~T~O 0F INSTALL[~ CASING PIPE ~O[R . X DRY 8~E A~ dACK I~T KD[ KT PEflalTT[0) ; T~L I OTHER G) gikk CON~IR~TI~ B~ BY AN ~TSIDE C~TRACTO~ H) DiCTAtE FR~ C~TER ~1~ OF TRAC~ TO NE~ F&CE OF dAC~t~ PlT~ ~ ~&~O AT RIGHT U. P. C~NlCiTl~ OEPART~NT, A~ H&~ 0[TC~INE0 FIgER OPTIC CA~E X O~S I ~S ~TtEXiST, IN V[CINiTY KRK TO BE PE~O~O · TICKET ~0. 2~1402) J*S ~ I~OilI, JL~ tO FlU1 CASINO LENGTH IlTH ll~Li Of CROSSING QT~R Trod 9~ EXHIBIT 'AL" UNION PACIFIC RAILROAO CO. M. P '~l~t'qt E.S. ENCASEO ~TnaM WAT~a CROSSING AT wnnnRURN ~ ~: * ~ OR CI~ OF WOOOBURN. WOODBURN OREGON RR FILE NO.0232168 DATE lAIN I N~ Fora, ~ppm~*ed. ^¥P-Law with Ihe entire volue ol such property. Section g. R~RATION OF LICENSOR'S PROPERTY. ATTACHMENT Page O ~ of In the eeeflt the Licensor authorizes Ihe Licensee Io take down any lence of Ihe Licensor or in any manner mow or dislurb <any of Ihe olher property c~ Ihe Licensor in canneclion with the conslruclion, maintenance, repair, renewal, modification. reconslrucllon, relocation or removal of lhe Pipeline, Ihen in Ihat event the Licensee shall, as soon as possible and at Licensee's sole expense, restore such [once and other property Io the same c<xx:iiliorl as Ihe same were in belore such fence was taken dow~ or such olher property w'aa moved or dislurbed, and the Licensee shall indemnify and hold harmless the Licensor. its officers. agents and employees, againsl and from any and all liability, lass. damages, claims, demands, coils and expenses o! what--er nature, inciucLing courl coets and oJtomeys' lees. which ma7 result Jrom inlury tear death of persons whomsoever, or damage to or loss or destrucliort al property whatsoever, when such inlury, doeth, damage. [ess or deslruclion grows out o! or arises from taking down of any fence or the moving or dislurl0cmce c~ any other properly of the LJcensor. Seclion [0. ~. to) As used in Ihie Section. fl..icertsor" L,x:ludes other railroad companies using the Licensor's property at or nero' the location of the Licensee's install~tofl and Iheir officers, agents, and employees: 'Loss' includes loss. damc~e, claimm, demand~ actions, causes o{ ~clion. penalti~, costs, and ~ od whatsoever nature, tncluding courl costs and attorneys* fees, which ~ result [rom: to) Injury {o or death of persorm whomsoever (Including Ihe L.tcensoz's offlcem, agents, and empk)yeee, lite Licensee's oirlicm, agents, artd ompioyoel, al wo~! al arty other person); ~d/or (b) dcunage to or loss or c[eMl'UClion of property whatsoever (including Licensee's property, damage to Ihe roadbed, tracks, equipment, or other property od the Licensor. or propmty in Its care or cuslcxly). (b) As a major Inducemenl and ir& cormideratlon od the license arid permission herein granted. Ihe Licensee agrees to indemniJy ar'Kt hofd harmlm tho Lk::ertaol' from <;my Lace which is due to or arises (rom: The prosecution of cmy work conlemplaled by Ibis Agreement including [he installation, construction, mainlertance, repatr, renewx:d, modification, reconstruction, relocoUon, or removal of the Pipeline or any peri thereof; or 2. The presence, operation, or use of the Pipeline or contents escaping therefrom, except to the extent that the Lees is caueed by lhe solo and direct negligence of the Llce~. Section ! I. REly[OVAL OF' I~PE [.[NE UJ:~N 'F~'RMINA'rIC)N OF' Prior to the terminaUcm of this Agreemom howsoever, the Licensee shall, cd Licensee's sole expense, remove the Pipeline from those portions of tho properh, not occupLod by the roadbed ond Ircck or trctcke od tho Licensor and sl'u:dl restore, to ~he r, atfsfc0ctic~ of lbo Licerder, such portions od such properly to al good a comJltion as they w~re in at the time od the construction of the Pipeline. ]J the Lk:enese fcdle to do the foregofr~ the Licensor mcr~ do such work od rerm:w~ ond ro~torczUon at the cost crud esponse od the Licensee. The Ltoermor mc:q, at frs option, upon such lermination, at tho eflUre cost crud expense of Ihe Ucensee. remove the poflions od the PIpeltrm located underneath tls ~ croci track or tracks ancl re, toro such roo:U3ed to as good a condition as it was in at tho limo of tho constructk:m of the PipeUne, or it moy perrnil the License~ Io do such work of removol crud restoration to the scztl~ocflofl of tho Ltce~__-c~'__. In the event of the removal by the Lk:ensor of lhe property o~ the Ltcensee crud of the restorotion of the roadbed cn'M:l properly as herein provided, the [Jcensor stroll in no manner be lioble io the Licensee for any' domoge sustained by the IJcenseo f~ or on occounl thereof° ond such remo~l and resloecztion 8h~ll irt no manner prejudice or impair ony dg]lt of actk:xi for damages, or otherwise, t}'mt the Licensor m,:ry hmo against the L, icen,ee. Seclion 12. W~ OF BREACT[ Tho w<ziver by Ihe Licensor of Ihe breach of any condilion, covenant or agreement herein corttalned to be kept, observed and performed by t~e Licensee shaU In no way impair lbo rlghl of lhe Licensor to avail llself of an?, remedy for any subsequenl breach Ihereof. pl~.c~[b EshEbi! I! Fas' ~pf~o*,*cd. AVP-Law Section 13. ~. ATTACHMENT Page ,[~._. of .. ti the Licensee does nm use the right herein grcmled or the Pipeline for one (!) yack', or if the Licensee continues in clefoult in the performance o( a~y covertortt or agreement herein contained lot ~z period al thirty (30) dc~,s after writlen noltce from Licensor to the Eicensee speci¥ing such de(crulb the Licensor may. ~t its option, forlhw~lh immediolely terminate this Agreement by w'rilten noUce. (b) In ocldilio~ Ia Ihs provision-, o( subl:x:n'ograph (a) above, this Agreemerd mcr~, be termir~ed by wdtten noUce gtve~ by either party hereto to the olher on any d~te in such noUce stated, hal less. however, than thirty (30) ck:rys subsequent to the date upon which such notice sh~ll be given. (c) NoUce o! default and nc~tce o/termination may be served persom~ly upon the Licensee or by m~riling ko the last known caddress o[ the Licensee. Termim:dk:m o~ this Agreement for cmy reason shoU hal aJfecl any oi the rights or obligations o! lite p~rlies here[o which mc~/h~we accrued, or liabilities, accrued or othen~se, which may ho~e arisen prior there~o. Sect[on i 4. AGREEMENT NOT TO BE: ASS[GN£D. The l-~nsee ~'~11 no~ magn this Agreement, in w~e or in ~, ~ ~ ~ ~ein ~ ~t~! {~ ~tlen c~enl Section 15. SUCC~S~RS AND ASSIGNS. Subject to the provt~lcx~ ¢~ Secitcm 14 hereol, this Agreemenl si~ll be binding upon crud Inure ~o the benefit al the p~rttes herelo, their Ms. executors, admini~tm~tors. ?ucces~ors and assigns. pix cxb I'&f,e 4 o1' 4 EXHIBIT B-t ATTACHMENT- Page -.~--- of ,. Union Pacific Railroad Company Insurance Provisions For Pipeline ! Wireline I Drainage Liceas® Agreements Licensee shall, at il~ sole ~ and expense, procure and mainlai~ during the life of this Agreement Ihe foaowing insurance cove. age: A. C~nm~c!,ll General Uabilitv Insurance. This Insurance shall contain Ixoad form contractual liability w/th a single limit of at least $2.000,000 eKh occufl'~nc~ o~ claim and an aggregate limit of at lea~t $4,000,000. Co~m'a~W rnu~ be purchased on a po~t 1998 ISO or equivalent fora% including but not limited lo coverage for the following: Bc~llly Injury i~duding death and pelsonal Injury · Property damage Fire legal Iiabllty (Not less than the replacement value of the IXXlion of the premises occupied) · The exclullonn f~x raikoa(h (ex~epl where the Job ~ ii more Ihan ~ feet (50) from nny rnilmed Including but not lmited to tricltl, bddgel, k.l~lel, roidbedl, te[Tnlmds, undiq3itlel ~x cro;ilngs), mxl explollon, colllpie ,nd undeqfl~nd B. ]~uulne~ Automobile Core'ce insurance. This mm Ihall conlnin a combined single limit of at leas( $2.000,000 per occurrence or ~ ~ but nc~ IimRed lo coverage for lbo f(dlowing: · Any and il motor vehiclel Induding owrmd, hired and non-owned The policy abm ad~o contain the following mrlemer~ which ~hall be Indicated oft the certlf~ of iniuranoe: · Tho employN and wod~a co~4niatlon related exdudoM in the above policy al3ply only to I. Jcensee't employe~ · The exduaion~ for railm (eJa3ep~ where the Job site le more than fflty feet (50') from any railroad including but not hazard shd be removed · Mc)tM C~rler Act Endomement- Hazlrcloul material6 clenn up (MC8-90) if required by law. Workem Coml)lnl~tion and Emoloverl Uabllltv mm incklding but nM limited to: · t.k:~ee', st~utc~ Illl~llty undM' th, wod(erl' OOnkOEMalioE1 llv~ of tho ~tat~(s) nffecMd by mit Agrm~ment · Employers' UabiEy (Part B) with limltl of at lea~l $500,000 eech acctden(. T~O.O00 dlMese policy limit If Wod<erl ~tlon in~umncl wffi nol ~ the tlbllty uf I. icenlee In state~ thnt require p~tictpaUo, in st,te woman' compent4tJon fund. L__lcen_ ~ee ~MI comply wilh Ihe lawl cd such ititel. If Licensee I~ ,elf-in~Jred. evldence of Idate ,plxoval mutt be i~ovided along with evidence of exce~ workeft compermation covem0e. CovMage ahali Include flability arising out of the U. 6. Longshoremen'e ~nd Hatt~ Wo~ere' Act, the Jo~e Act, and the Outer Continental Shelf Land Act, If q31dic~ble. The poOcy' shMI alao contain the folloMng endoi~ment whk:h cheil be Indioated on the certificate M Insurance: · ARemate Employer Endomement D. Umbrella or Excess Polk=lee In the event Licensee utilizes Umbrella or exceli I;)olldel. lllele polic, les shall 'follow f(xm' and afford no lell coverage then the prlmarj( poIIGy. Page I of 2 Fo' '~ Approved. AVP4.aw Updated _Other Requirements ATTACHMENT Page _l.~.~_. of. E. Punitive damage exclusion musl be deleted, whiGh deletion ·hall be indicated on Ihe ce~flcate of in·urance. F. Licensee agrees to waive its right of recovery, and it. Insumm, through policy endo~ement, agree to waive their ~ght of subrogation against Licensor. Ucensee Ertl'mr waives lta right of recovep/, and ~ insurers also waive their right of subrogation against Licensor for loss of its owned or leased I~'opefty or ;xoperty under ils care, custody and conlrol. Licensee's Insurance shal be prkTtary with respect to any Insurance canted by Licensor. All waivers of subrogation shall be indicated on U~e certificate of Insurance. G. All policy(les} required above (excluding Wod<ers Compensation) shall provide sevembity of interests and shall name Ucensor as an additional insured. Sevembility of in.rest and naming Llcen·or a~ additional insured ·hall be indicated on the ce~lflc~te of in·ur·ace. H. Prim to commencing the Wod(. Ucensee shall fumish to Lk:ensor original cmrtlf',:ata(s) of insurance evidencing the required coverage, endomemenl~, and amendment. The certllicate(~) thalt con~ain a provision thai obligates the insurance coml~nY(ies) Issuing such puiicyOes) to noilly Licensor in Miring of any cancelMlon or rrmtecbl alteration. Upon requflt from Uceflsor, · certified duplicate original o~ Bny required policy shall be furnished. I. Any Insurance pc~cy shill be written by a reputable ins~rarx~ company acceptable to Licens~r or with a current Beat's Insurance C~ide Raling of A- and Clau VII or belter, and authorized Io da bur. i~esl in the state(s) In which Ibe sewlce b to be provided. J. Ucensee WARRANTS that ~ Agreement has been thoroughly reviewed by Li~naes'· in,.~.'ar~e age~t(a)/txoka'(s), who have been instnJc~ by Ucenaee to procure the insurance coverage required by this Agreement and aclmowtedgee thit Licensee's K. The fact that Insurm3ce i~ ob~airmd by Ucensee or ~_'__.~_n~or on behalf of I.ic4fmee ~mll no{ be deemed to retem~e or diminish the lability of Licensee, inclu~ng, without limitaticm, iabilty under the Indenmlty ptodsions of ~ Agreement. Damages recoverable by Licensor ·hall not be limited by the amount of the required Insurance coverage. Page 2 of 2 J A'rl'ACHMEN'r -- - ~ Page ~ of _ '~ - August 18, 2005 TO: FROM: SUBJECT: Honorable Mayor and City Council Frank Tiwari, Public Works Director "~[~~--~ N. Robert Shields, City Attorney Union I~aclflc Railroad Pipeline Crossing Agreement RECOMMENDATION: Receive the report. BAgKGROUND: The City Council considered a proposed pipeline agreement with the railroad at its August 8, 2005 meeting. This agenda item was tabled because of concern about the ability of the railroad to terminate the agreement without cause on 30 days notice. The Council also asked for information on the authority of the City to condemn railroad property. Negotiation of Agreement The railroad initially approached the City with its "standard form" license agreement. Identical license agreem~,nts have been executed by numerous utilities and public entities along the railroad line. The past experience of the City is that the railroad is not easy to negotiate with and has riffle flexibility in its initially proposed contract terms. Historically, the railroad has never required the City to relocate any of its utilities after obtaining its permission to install them. Public Works staff made telephone calls to other jurisdictions to receive their input of this matter. The only jurisdiction it found that had negotiated some modifications to the standard agreement was the City of Salem. However, the City of Salem was only able to extend the 30-day notice provision to one year. Agenda Item Review: City Administrator ___ Cily Attorney Honorable Mayor and City Council August 18, 2005 Page 2 ATTACHMENT Page ~ of Public Works staff will approach the railroad and propose that the agreement be changed from a license to an easement. Legally, licenses are normally revocable. Easements run with the land and can be perpetual. City Condemnation of Railroad Prooerty~ This memo provides general legal information, as requested by the Council. If a more specific discussion is needed at a future time, this should occur in executive session. The general parameters are: Railroads, like cities, have the power of condemnation. Certain railroad rights-of-way were acquired through Congressional Grants from the United States and are not subject to condemnation or even adverse possession. Consequently, how the railroad holds title to the land may well be determinatiye. The first step in eyaluating any potential condemnation action would be to thoroughly research this question with the aid of a title company. One potential legal limitation to the City's authority is contained in Oregon case law. The authority to condemn property already appropriated to public use must be stated "in express terms or must arise from necessary implication." Little Nesfucca To/I-Road Co. v. Tillamook Co., 31 Or 1,6, 48 P2d 465 (1897). The railroad would be considered to be property already appropriated for public use. The more serious and likely legal hurdle is federal preemption under the Interstate Commerce Commission Termination Act. In City of Auburn v. U.S. GoYemment, 154 F3d 1025 (9th Cir 1998), cert den, 527 US 1022 (1999J, the Ninth Circuit construed this statute as preempting local environmental regulations that were otherwise applicable to proposed changes in railroad operations. This case has been widely cited for the proposition that Congress intended to broadly preempt state and Jocal government regulation of railroad operations. Many cases have found that federal preemption precludes local government action against railroads. See, e.g., City of Uncoin v. Surface Transportation Board, 2005 U.S. App. LEXIS 13946 (8th Cir July 12, 2005J. (Acquisition of easement for bicycle and pedestrian trail is preempted.J; ' In preparing this portion of the memo, the City Attorney consulted with several professional colleagues. The contribution made by other city attorneys and fonmer city attorneys in Portland, Salem. Beaverton, Lake Oswego, Oregon City, and Grants Pass is acknowledged. Honorable Mayor and City Council August 18, 2005 Page 3 ATTACHMENT ,~' Page_'.~- of 3Z -- Wisconsin Central Ltd. v. City of Marshtield, 160 F Supp 2d 1009 (WD Wis 2000) (finding broad preemption); Columbiana County Pod Aufhorfty v. Boardman Tp. Park Dist., 154 F Supp 2d i165 (ND Ohio 2001) (adopting Auburn and Wisconsin Central as precedent). In certain instances, federal courts have found that no preemption exists if the exercise of local government authority against the railroad does not interfere with railroad operations. However, it is likely that the involved facts will be litigated. See, e.g., Distrfcf of Columbia ¥. 109,205.5 Square Feet of Land, 2005 U.S. Dist. LEXIS 7990 (April 25, 2005J (Acquisition of an easement by eminent domain to permit a crossing of railroad track in connection with construction of a new public street did not Implicate federal preemption where it would not prevent or unreasonably interfere with railroad operations.): City o1' Uncoln v. Surface Transportation Board, 2005 U.S. App. LEXIS 13946 [Sth Cir July 12, 2005). JDicta where court states that "it is well established that nonconflicting, nonexclusive easements across railroad property are not preempted if they do not hinder rail operations or pose safety risks.) FINANCIAL IMPACT: None from this report. ATTACHMENT Page ~-.. of October 18, 2005 TO: FROM: SUBJECT: Honorable Mayor and City Council through City Administrator David Torgeson, nt City Engineer, through Director of Publi Works UPRR Pipeline Crossing Agreement ~ECOMMENDATION: 1 ) Remove the item from the table for further consideration. 2) Authorize the City Administrator to execute a Pipeline Crossing Agreement with Union Pacific Railroad, as presented, with the understanding that construction of a safety manhole (as requested by City staff) may be added into the Agreement. BACKGROUND: A proposed Pipeline Agreement with the Union Pacitic Railroad was presented to Council on August 8. The matter was tabled at that meeting. Subsequently, the Director of Public Works and the City Attorney Informed Council by memorandum of relevant issues. Staff now believes the Agreement can and should receive action by the Council. The following includes a recap of previous issues and actions. A regional storrnwater detention facility (an approved CIP project} will be constructed on City-owned property west of Sefllemier Avenue, south of Smith Addition. Hydraulic studies performed in connection with the design indicate that additional capacity is needed in conveyance facilities downstream. The link between Settlemier and Front Street will be improved by construction of an open swale near the south line of the City park. The new swale will act in concert with the existing buried pipe to provide needed capacity. A new 24-inch pipe will provide the required capacity east of the park. It will cross Front Street, UPRR, and Ogle Street before discharging to a tributary of Mill Agenda item Review: City Administrat City Attorney F'manc~ 5O Honorable Mayor and City Council October 18, 2005 Page 2 & ATTACHMENT Page~ of_ "~ Creek. The new pipe will be in a bored casing and will be constructed parallel to the existing pipe. The Union Pacific Railroad (UPRR) has certain requirements for construction in their right-of-way. An application was tendered April 22, 2005. Documents were provided by UPRR on May 10, 2005. Completion of the Pipeline Crossing Agreement will involve return of executed original documents, payment of a $2,400 Pipeline Crossing fee, and execution and return of Contractor's Right of Entry Agreement. (The latter to be accomplished after a contractor has been engaged by the City.} Since the Pipeline Crossing Agreement was first received in May, City staff investigated two possible areas of change in the Agreement. First, whether UPRR would agree to a different arrangement, and provide a permanent easement to the City instead. The response was negative - the railroad does not grant easements. Second, Section 11 of the Agreement requires removal of the pipeline upon termination of the Agreement. Section 13 allows termination by either party after giving 30 days written notice. Staff investigated whether other Oregon cities had successfully negotiated changes in these Sections. Since the original agreement was drafted, staff has recommended that additional work be performed concurrently with the bored under-crossing. The additional work occurs at an opening in the existing culvert section. The opening (adjacent to Ogle street, on the railroad right-of-way) presents a hazard to public safety. Plans showing construction of a manhole (that will fill the open culvert transition) have been submitted to the UPRR for review and approval. The railroad is expected to issue an amended Pipeline Agreement that will include and permit this additional work. DISCUSSION: Identical license agreements have been executed by numerous utilities and public entities along the railroad line. Historically, the railroad has never required the City to relocate any of its utilities after obtaining permission to install them. Changes to the Termination language appear possible, based on experience of other jurisdictions. The City of Salem negotiated an extension from 30 days to one year. Because there are no feasible alternatives (in the present instance) to conveying storm drainage, except across the railroad right-of-way, staff has concluded that such an extension of the termination clause provides no benefit to the City Honorable Mayor and City Council October 18, 2005 Page 3 ATTACHMENT Page _L'~ orr_ The agreement is necessary for work to proceed. Construction will occur in spring 2006, after final design is completed and clearance from Oregon DSL and US Army Corps of Engineers is secured. The City's insurance underwriter has reviewed the Agreement. No changes in the document were recommended as a result of that review. A portion of the facility will be constructed on private property east of Ogle Street. The owners, Mr. And Mrs. Johnston, have graciously granted the necessary easement. Acceptance of this easement will be brought to the Council as a separate item. FINANCIAL IMPACT: Fee of $2,400 will be paid from budget established for CIP project. Total estimated cost of the construction (occurring later) is $190,000. Attachments: Agreement (UPRR Folder No. 02321-68) City Attorney's Legal Opinion dated August 18, 2005 ATTACHMENT ,, Page ._~ of,. ~-' 9& November 21, 2005 TO: Honorable Mayor and City Council through City Administrator FROM: SUBJECT: David Torgeson, Assistant City Engineer, through Director of Public Works ~ UPRR Pipeline Crossing Agreement RECOMMENDATION: 1 } Remove the item from the table for further consideration. 2) Authorize the City Administrator to execute a Pipeline Crossing Agreement with Union Pacific Railroad, as presented, with the understanding that construction of a safety manhole {as requested by City staff) may be added into the Agreement. BACKGROUND: A proposed Pipeline Agreement with the Union Pacific Railroad was presented to Council on August 8. The matter was tabled at that meeting. The mailer was returned and brought, from the table October 24, 200,5. Additional background is contained in Agenda Items from those dates. The Union Pacific Railroad (UPRR) has certain requirements for construction in their right-of-way. An application was tendered April 22, 2005. Documents were provided by UPRR on May 10, 2005. Completion of the Pipeline Crossing Agreement will involve return of executed original documents, payment of a $2,400 Pipeline Crossing fee, and execution and retum of Contractor's Right of Entry Agreement. (The City will engage the latter after a contractor has been selected to install the pipeline.} The agreement is a license, and allows termination in 30 days. The railroad does not allow easements for pipelines across the railroad right-of-way. Staff has not recommended seeking further extension of termination period. Agenda Item Review: City Administrato~~/ City Attorney .... Financ~ Honorable Mayor and City Council November 21,200,5 Page 2 ATTACl-~ENT., ,~,~. Page ..._._~_ of DI~CUSSiON: Identical license agreements have been executed by numerous utilities and public entities along the railroad line. Historically, the railroad has never required the City to relocate any of its utilities after obtaining permission to install them. Portland General Electric reports that agreements between themselves and the railroad contain similar terms. Only once in twenty years has a relocation been required {for construction of a new spur line). PGE received help in finding a new site from the railroad. Northwest Natural has similar history, but no relocations have occurred according to Northwest's Chief Engineer, It has been more difficult to draw parallels between our Pipeline Crossing and the experience of ODOT with railroad crossings. Council specifically asked for information pertaining to the Highway 214 under crossing of the UPRR that was constructed in the 1970's. After conversation with five ODOT staffers, the conclusion: that information was not readily accessible - but may be hidden in archives. An individual whose title is "ODOT State Railroad Liaison" spoke of the current policy of his agency. ODOT staff is under direction to accept railroad agreements and not to invoke condemnation proceedings. This direction from ODOT policy-makers recognizes the time value of ODOT projects, and .the "great cost" that would be incurred to seek legal modifications to standard railroad agreements, according to the spokesman (who is associated with the ODOT Right-of-Way Department.) He, other ODOT staff and franchise utility representatives have each commented on the Iow probability of legal challenges to the termination language contained in railroad standard agreements. City Attorney may wish to provide further information concerning the legal basis of railroad rights of way through Woodburn. The Attorney provided initial input in the prior memo (included in the Attachment). FINANCIAL IMPACT: Fee of $2,400 will be paid from buc~get established for CIP project. Total estimated cost of the construction (occurring later) is $190,000. Attachment: Council Agenda Item (October 18, 2005) with attachments WOODBUI N ATTACHMENT Page __L._ of ~ January 4, 2006 TO: Honorable Mayor and City Council FROM: N. Robert Shields, City Attorney SUBJECT: Follow-up on Condemnation Issues UPRR Pipeline Crossing Agreement BACKGROUND: At your November 28, 2005 meeting, you requested that staff provide a cost estimate in case the City Council decides to pursue condemnation of railroad property. You also requested a step-by-step process of what would be involved. DISCUSSION: Condemnation Procedure The Oregon condemnation statute sets out the process for the exercise of the constitutional power of eminent domain. The legislature comprehensively revised this law in 2003. It contains many technical requirements that the City most follow. The major steps are as follows: · City staff must give notice and follow detailed formalized procedures for any pre-condemnation entry onto the property. · Entry onto the property is necessary for evaluation, environmental assessment and appraisal purposes. · City Council passes resolution that the property is necessary for a public purpose. · City must negotiate in good faith with owner and offer what it considers to be "lust compensation" to the owner. · A condemnation action is commenced by the City by filing a Complaint in Marion County Circuit Court. · The City can seek an Order of Immediate Possession of the property and, if such an order is issued, it must pay the just compensation amount to the Circuit Court clerk pending the trial. Agenda Item Review: City Administrator ~_ City Attorney ~ Finance Honorable Mayor and City Council January 4, 2006 Page 2 ATTACHMENT._.~ ,°age _-.g.- of~ ~ -- · The property owner files a legal response. An Answer to the Complaint could be filled. However, legal defenses questioning the City's power to condemn the property could also be raised by Motion fo Dismiss. · If the case is not dismissed by the Court or settled by the parties, it would proceed to a jury trial. · Each side is allowed to present appraisals and evidence and the jury the awards just compensation to the owner. · If the City decides to abandon the condemnation action, the City must pay the attorney fees and litigation costs of the owner. · If the amount of just compensation awarded by the jury exceeds the City's highest written offer to the owner, the City must pay all attorney fees and litigation costs of the owner. · Either party has the right to appeal to the Oregon Court of Appeals. Cost Estimate As I stated at your meeting, it is difficult to provide a cost estimate that is likely to be accurate. However, the City Council specifically requested that I make one. In order to obtain a more knowledgeable assessment for you of what costs could potentially be expected in a condemnation action against a railroad, I consulted with John Osburn, a partner in the Portland law firm of Bullivant Houser Bailey, who specializes in condemnation litigation. Prior to meeting with me, Mr. Osburn talked to his colleague Don Stark, who is of counsel to Bullivant Houser Bailey, and has been involved in numerous railroad condemnations. Mr. Stark represented the Portland Development Commission in over 100 condemnation cases, represented Tri-Met on its acquisition of Westside light rail, and represented the City of Portland when it condemned both the Paramount Theater and Union Station. From my consultation, I obtained the following: · Condemnation of railroad property for a pipeline crossing would be legally possible in Woodburn's situation. · As a practical matter, railroads are not easy to deal with and consider themselves to be a "federal tunnel" through state and local jurisdictions. · It is the standard policy of many larger jurisdictions (i.e., the Oregon Department of Transportation) to accept revocable licenses for their rail crossings. · The City should anticipate that the railroad would contest its right to condemn the property and fight at every step of the way. · Any condemnation action filed by a city against the railroad would be perceived by the railroad as v3ry important and a large amount of Honorable Mayor and City Council January 4, 2006 Page 3 ATTACI~,MENT..~~' , Page '~' of '> . ,, resources would be devoted to defending the action. This is because the railroad would see it as precedent setting and believe that it would have negative implications as to all of the public entities it deals with. If Bullivant Houser Bailey were to handle the case, it would sel a litigation budget of approximately $50,000 - $70,000, which would not include an appeal or the amount of lust compensation that the City would pay for the property. (At $250/hour, this equates to 200 - 280 billable hours.) As was discussed at your meeting, since I am already employed as the City's in house counsel, legal representation costs on cases that I am qualified to handle are internal. However, there is still a cost to the City that you must assess. Significant time spent providing legal support in one area always impacts my ability to provide adequate legal support in other areas. I know from your involvement in the budget process and your decision to upgrade the Assistant City Attorney position to full-time that you are generally aware of my workload. As always, I will do my best to assist the City in any decision it makes. 5'/ ATTACHMENT- P~e_ I of .~, January 4, 2004 TO: Honorable Mayor and City Council through City Administrator FROM: David Torgeson, Assistant City Engineer, through Director of Public Works SUBJECT: UPRR Pipeline Crossing Agreement RECOMMENDATION: 1) Remove the item from the table for further consideration. 2) Authorize the City Administrator execute a Pipeline Crossing Agreement with Union Pacific Railroad (UPRR), as presented, with the understanding that construction of a safety manhole (as requested by City staff) may be added into the Agreement. BACKGROUND: A proposed Pipeline Agreement with the Union Pacific Railroad was presented to Council on August 8. The matter was tabled at that meeting. The matter was returned and brought from the table October 24, 2005. Additional background is contained in Agenda Items from those dates. The item was brought before council again on November 28, 2005, and was again tabled. The Union Pacific Railroad (UPRR) has certain requirements for construction in their right-of-way. An application was tendered April 22, 2005. Documents were provided by UPRR on May 10, 2005. Completion of the Pipeline Crossing Agreement will involve return of executed original documents, payment of a $2,400 Pipeline Crossing fee, and execution and return of Contractor's Right of Entry Agreement. (The City will engage the latter after a contractor has been selected to install the pipeline.) The agreement is a license, and allows termination in 30 days. The railroad does not allow easements for pipelines across the railroad right-of-way. Staff has not recommended seeking further extension of termination period. Agenda Item Review: City Administrator__ City Attorney_ Finance __ 58 Honorable Mayor and City Council January 4, 2006 Page 2 ATTACHMENT ~ "' Page ~?--:-'-- of ~.. DISCUSSION: Identical license agreements have been executed by numerous utilities and public entities along the railroad line. Historically, the railroad has never required the City to relocate any of its utilities after obtaining permission to install them. Contacts were made (between August and December 2005) of seven Oregon cities, two franchise utility companies, and ODOT. Portland General Electric reports that agreements between themselves and the railroad contain similar terms. Only once in twenty years has a relocation been required (for construction of a new spur' line). PGE received help in finding a new site from the railroad. Northwest Natural has similar history, but no relocations have occurred according to Northwest's Chief Engineer. An individual whose title is The ODOT "State Railroad Liaison" spoke of the current policy of his agency. ODOT staff is under direction to accept railroad agreements and not to invoke condemnation proceedings. This direction from ODOT policy-makers recognizes the time value of ODOT pro]ects, and the "great cost" that would be incurred to seek legal modifications to standard railroad agreements, according to the spokesman (who is associated with the ODOT Right-of-Way Department.) He, other ODOT staff and franchise utility representatives have each commented on the Iow probability of legal challenges to the termination language contained in railroad standard agreements. Among the cities that staff contacted, two did not respond to inquiry. One indicated they had not entered into an Agreement for pipeline crossing with UPRR in the past seven years. One ci}y said they had accomplished minor changes in the standard agreement. Another thought, but could not substantiate, that easements could be obtained at a higher cost than Pipeline crossing agreements. (This is contrary to information provided by UPRR.) The City of Portland furnished a copy of a recent Agreement. By appearances, Portland obtained somewhat more favot'able terms, but at a significantly higher cost. The railroad charged a fee of $34,100 to permit a crossing of a 48-inch sewer and a 30-inch sewer located in a single 108-inch steel casing. The Portland agreement requires removal of the pipeline (at Portland's expense) from beneath the railroad roadbed, upon termination of the agreement. Cause for termination in that agreement includes failure to use the granted right for one year, or for default owing to departures from the covenants relating to operation or safety. In those cases, thirty days written notice from the licensor is sufficient to invoke termination. Eugene customarily executes Agreements with 59 Honorable Mayor and City Council January 4, 2006 Page 3 ATTACHMENT Page -.~ of ,,. the 30-day termination clause. Staff there indicates, "They have had no trouble with UPRR.' Existing utility crossings of the UPRR mainline in Woodburn number some nineteen, of various purposes. Twelve waterlines cross the railroad. (Some of the crossings have been abandoned in place.) Three sanitary sewers have records of crossing - the forcemain from Mill Creek Sewer Pump Station is included. Two stormwater pipes have been permitted by the railroad. Others exist, but do not have records at the City, UPRR, or at Southern Pacific Railway, as reported by a consultant who performed a recent search. Incidental crossings include two overhead wirelines that were permitted in 1999. Twenty-two crossings of the spur (running east from Front Street) are on file. It is noteworthy that the right of way of the spurline remains under the ownership of the UPRR, who leases trackage to Willamette Valley Railway. All pipeline crossings of the UPRR in Woodburn (whose documents are currently available) require the removal or relocation of buried lines at the sole cost of Licensee/Grantee. Older agreements [made with SPRR) indicate that the railroad can require such actions "at any time" deemed necessary to serve their interests. FINANCIAL IMPACT: Fee of $2,400 will be paid from buaget established for CIP estimated cost of the construction (occurring later) is $190,000. project. Total ATTACHMENTS None 60 WOODBURN Incorporated I 8 ~J 9 IOA January 23, 2006 TO: FROM: SUBJECT: Honorable Mayor and City Council through City Administrator Naomi Zwerdling, Interim Community Development Director Formal Interpretation 05-01 located at 1605 E. Lincoln Road. RECOMMENDATION: In regard to this land use application, the City Council has the following options: (1) Make the interpretation that the secure residential care facility use proposed by the co-applicants is the same as the "elderly group care facility" use specified by Ordinance 2227. (2) Make the interpretation that the secure residential care facility use proposed by the co-applicants is not the same as the "elderly group care facility" use specified by Ordinance 2227. It is recommended that the City Council make the interpretation that the secure residential care facility use proposed by the co-applicants is not the same as the "elderly group care facility" use specified by Ordinance 2227. It is necessary that the City Council, by motion, instruct staff to prepare an ordinance to substantiate its decision. BACKGROUND: Telecare Mental Health Services of Oregon, Inc and Erik Berkey, co-applicants, submitted a formal interpretation application requesting Ordinance 2227 be interpreted to allow for the use of the subject property located at 1605 East Lincoln Road as a secured residential care facility. The subject property is identified specifically on Marion County Assessor Maps as Township 5 South, Range 1 West, Section 17BA, Tax Lot #200. At its meeting of November 9, 1998, the City Council adopted Ordinance No. 2227 granting a conditional zone change on the property located at 1605 East Lincoln Road from Single Family Residential (RS) to Commercial General (CO). The co-applicants in 1998 were Erik Berkey and Aaron Ensign. Section 3 of the ordinance states "...That the zone change granted by Section 2 of this Agenda Item Review: City Administrat(s~:~,.~,~ City Attorney ~ Finance,/_~ 61 Honorable Mayor and City Council January 23, 2006 Page 2 ordinance shall allow only an elderly group care facility..." The City Council also approved a site plan review application for a 5,990 square foot elderly group care facility. NATURE OF THE APPLICATION Section 4.102.09.C.4 of the Woodburn Development Ordinance (WDO) states that "For uses which the Community Development Director determines cannot be readily classified with reference to NAICS or particular description in the WDO the Director may request a formal interpretation by the City Council. Alternatively, any person, upon application may request such an interpretation..." Erik Berkey and Telecare Mental Health Services of Oregon, Inc., the co-applicants, submitted a formal interpretation request per Section 4.102.09.C.4. Staff believes that this application should be considered under the interpretation of uses in Section 4.102.09.C of the WDO. It is not the type of interpretation that deals with an ambiguity contained in the WDO itself but is really a question of whether the co-applicant's proposed use is the same use specified by this previous ordinance. DISCUSSION: In their application, the co-applicants address the intended use of the subject site: "Telecare intends to operate a mental health care facility which is licensed by the State of Oregon. This facility, having a 15 bed capacity, will provide temporary and semi-permanent housing for individuals requiring treatment for mental disabilities. With such disabilities, all residents of the facility are protected from anti-discrimination laws under the American with Disabilities Act (commonly known as the "ADA"). These residents are all adults needing mental health treatment and are all under the jurisdiction of the State program for supervising mentally disabled persons. The facility is not a "prison" and does not have the capacity to house prison inmates. The facility will have a secured room which is used, when necessary, for the temporary treatment of residents and their mental disabilities if their behavior demonstrates behavior that is harmful to themselves or others. A treating psychiatrist or master's level staff member will provide supervision at all times for the purpose of monitoring Honorable Mayor and City Council January 23, 2006 Page 3 and assessing the behavior of all residents. Staff will provide supervision and monitoring of the residents at all times." In the submitted narrative, the co-applicants also state "...This facility will be secure such that the individuals under involuntary commitment remain within secure areas and will be required to do so unless authorization is given through the court systems. Individuals who consent to treatment may leave at their own volition..." A Facility Safety and Security Plan was submitted by the co-applicants in regard to security devices and safety and security policies and procedures. This plan is attached to the report. The WoodbL;rn Police Department had questions regarding the submitted Facility Safety and Security Plan. The co-applicants submitted a response to the Woodburn Police Department's letter dated October 24, 2005. In particular, the Woodburn Police Department asked in Question #1, "What criteria beyond "PSRB jurisdiction" will be used for patient placement? Will patients with a history of violent or criminal conduct be housed there? Who will make decisions on patient placement?" Dean M. Phillips responded in a letter dated November 2, 2005 the following: "1. What criteria beyond "PSRB jurisdiction" will be used for patient placement? Will patients with a history of violent or criminal conduct be housed there? Who will make the decision on patient placement? The Psychiatric Securities Review Board (PSRB) establishes the criteria for placement of individuals who qualify for community placement. The PSRB has the authority to commit a person to a state hospital, and to approve individuals for conditional release from the state hospital to community programs. The Board is composed of five members appointed by the Governor. The individuals considered for the Recovery Center at Woodburn have already been in treatment at the Sate Hospital for a period of time, usually years or decades, during which stay they have been determined to be stable, and in the opinion of the hospital's interdisciplinary treatment team, are ready for conditional release to the community program such as Telecare's program. If the PSRB agrees that an individual is ready for conditional release, they will issue a court order requesting a community provider do a formal assessment and a plan of treatment for the individual. Once approved by the PSRB, this plan becomes the criteria for conditional release to the community program. Honorable Mayor and City Council January 23, 2006 Page 4 The formal assessments for Telecare Recovery Center at Woodburn are performed by a licensed Clinical Social Worker (LCSW), who is the Administrator of one of our .existing Oregon programs, and a Psychiatrist, who is board certified in forensic psychiatry. They complete a formal assessment on each individual referred, and if they don't think an individual is appropriate for community placement or poses a danger to public safety or the community, can choose not to take them. Upon receipt of a formal assessment, the PSRB will schedule a hearing for the individual in question, and the Board at that time will review the conditions for granting conditional release, and vote yes or no, or they may add other conditions they feel are necessary to ensure public safety. Upon acceptance of a referral, a community provider (such a s Telecare) must agree to the conditions established by the PSRB during the hearing process. Individuals under the jurisdiction of the PSRB have been found "guilty except for insanity" of a wide variety of offenses. However, once PSRB determines conditional release is appropriate, these individuals are protected under the ADA and the Public Housing Laws which prohibit discrimination on the basis of disability." At its meeting of November 9, 1998, the City Council adopted Ordinance No. 2227 granting a conditional zone change on the property located at 1605 East Lincoln Road from Single Family Residential (RS) to Commercial General (CG). The City Council also approved a site plan review application for a 5,990 square foot elderly group care facility. Section 3 of Ordinance No. 2227 states "That the zone change granted by Section 2 of this ordinance shall allow only an elderly group care facility. No other commercial use shall be allowed without first obtaining approval thereof through the zone change process." This means that the use allowed on the subject property can only be changed through the zone change process. There has been no subsequent zone change on the subject property. Because the conditional zoning still applies, a use that is interpreted to be the same as "an elderly group care facility" would be permitted on the property. All uses that are not consistent with this specific use are nol allowed. The only way to change the allowable uses on the subject property is through the zone change process. Honorable Mayor and City Council January 23, 2006 Page 5 Page 4 of Exhibit A of Ordinance No. 2227 states "...To ensure conformance with the proposed layout, the zone change will be subject to an approved site plan and will be so marked on the Official Zoning Map..." Finding that the proposed secured residential care facility is not consistent with "an elderly group care facility" as specified in Ordinance No. 2227 can be supported by changes to the previously approved site plan/building in the following ways to meet the requirements for a secured residential care facility: The co-applicants state in the submitted Facilities Safety and Security Plan "...Licensing for this type of facility requires that the windows be of a material that will not break into dangerous glass shards if accidentally or intentionally broken. The glass windows in the facility have been replaced with lexan, which is a type of plastic that is very difficult to damage or break. In addition, the opening of the window is limited to a space of four inches, sufficient to get fresh air, but not enough to allow them to be used as an egress..." The co-applicants state in the submitted Facilities Safety and Security Plan "Fire pull stations will be equipped with locks, or with alarmed covers, (depending on what is acceptable to the local fire marshal), so that they cannot be easily utilized to allow residents to exit the building." The co-applicants state in the submitted Facilities Safety and Security Plan "The landscaped outdoor area at the back and sides of the facility will be enclosed by a chain link fence at least eight feet in height." Condition of approval #5 of Ordinance No. 2227 states "A 7 foot high wood fence shall be provided at the west, north and east property lines." An 8 foot fence was not approved by the City Council in Ordinance No. 2227. Section 2.202 of the WDO limits the height afa fence for non- residential zones and uses to a maximum height of 7 feet. Zoning Adjustment (Type II) Decision approval is required to exceed the 7 foot maximum fence height requirement. A fence permit would be required from Jhe Planning Deparfmenf and a building permif would be required for an 8 foot tall fence. The building floor plan submitted by the co-applicants in the submitted narrative date stamped June 29, 2005 shows that several bedrooms in the existing building located on the subject site will be used for office/administration uses instead of patient rooms. Honorable Mayor and City Council January 23, 2006 Page 6 Finding that the proposed secured residential care facility is not consistent with "an elderly group care facility" as specified in Ordinance No. 2227 can also be supported by the change in occupancy from SR 1.2 (Alzheimer and Dementia residents) to R-4 for a secured residential care facility that is required by the 2004 Oregon Structural Specialty Code. A secured residential facility is required to be licensed by the State of Oregon Office of Mental Health and Addiction Services (OMHAS). Finally, finding that the proposed secured residential care facility is not consistent with "an elderly group care facility" as specified in Ordinance No. 2227 can be supported by the record at the September 3, 1998 Planning Commission Meeting and the October 26, 1998 City Council Meeting listed as follows: September 3, 1998 Plannin.q Commission Meetin.cl On page 1 of the applicant's narrative date stamped April 10, 1998 which is attached to the Planning Commission Staff Report for Zone Change 97-08 and Site Plan Review 98-10, the applicant provided a narrative in regard to supporting a zone change by showing there is a need for the use proposed and showing that the particular piece of property in question will best meet that need. The applicant stated "...The aging of our population has created a distinct need for elderly and "special needs" housing. People who are in a "bridge" group between self sufficiency and nursing home care are increasing in number at a rapid pace. The housing need for this segment of our population has created a need for residential care homes...By providing elderly/assisted living, we are adding to the diversity of housing types..." According to the September 3, 1998 Planning Commission Meeting minutes, Livio Stan, representing the property owners Erik Berkey and Aaron Ensign for the 1605 East Lincoln Road site, clarified a group care house is licensed by the State of Oregon as a residential care facility which will provide care for elderly people in transition from their home to a nursing situation and are at the point where they really need assistance. On the September 3, 1998 Planning Commission Meeting tape Livio Stan stated the applicant performed a market analysis and found there was a large need for housing of people aged 65 to 74. Honorable Mayor and City Council January 23, 2006 Page 7 According to the September 3, 1998 Planning Commission tape, Karen Sheryl, the Administrator of Countryside Living, explained to the Planning Commission that this type of facility Js called a Class 1 Residential Care Facility where the residents are ambulatory and what they need is a little assistance Jn the everyday living requirements such as medication, cooking, security, someone to talk' to, someone to care about them. Many of them have families who would care for them but are working families who don't have the time to be there everyday and take care of their relatives. The Woodburn Planning Commission minutes dated September 3, 1998 state that Karen Sheryl informed the Commission that they are going through the licensing procedure for the State and are required to accept Class 1 elderly patients only. They are under strict rules and regulations as to what they can or can't accept. According to the September 3, 1998 Planning Commission tape and minutes, a Planning Commission member stated that "the zone change would be appropriate as long as it is conditioned to be developed and used as a State licensed assisted living facility for the elderly so there would be no question about what it might be five years from now...I want it to be limited to elderly...I realize that half way houses and drug half way houses and criminals on their way back into society and mentally ill people, I know that they have to have a place to go, but I am just not prepared to say that this is what that place ought to be, this site ought to be...But for now alii am prepared to approve is care for the elderly." He explained he did not want the property to be used for something else later on if the property were to be sold. According to the September 3, 1998 Planning Commission Meeting tape, a Planning Commissioner stated "...that Jn our condition, rather than just conditioning it upon a group home, could we word the condition so that Jt is a State licensed assisted living facility for the elderly otherwise, a group home might be for a mentally ill or half-way house for drug attics..." October 26, 1998 City Council Meeting · According to the October 26, 1998 City Council Meeting tape, staff stated that in addition to the zone change that the applicant was Honorable Mayor and City Council January 23, 2006 Page 8 requesting, there is also a request for a site plan review approval for a "15 room elderly care facility" during the presentation of the proposal. According to the October 26, 1998 City Council Meeting minutes, "The applicant's justification for the zone change was 1) group care home is a bridge between self sufficiency and nursing home care, 2) adds diversity to the type of housing stack, and 3) close to supporting sewices." According to the October 26, 1998 City Council Meeting minutes, staff stated "The Commission is recommending approval of the zone change and site plan with conditions. He also stated that the Commission would like to have the zone change conditional for a group elderly care facility only." According to the October 26, 1998 City Council Meeting minutes, a Councilor questioned "...if the Council could approve the zone change and limit it to this particular development..." The City Attorney responded "he did not feel that there was a problem with the condition as recommended by the Planning Commission. However, the zone change would remain intact unless the zone change process is followed to change it back to single family residential." According to the October 26, 1998 City Council Meeting tape a City Council member stated "1 don't have a problem with the building, but what I have a problem with is it failing as an elderly care center and becoming a half way house for drug addicts...in the same building." Staff responded "that is why the Planning Commission was very much concerned ...that this zone is conditional only for elderly health care facilities..." At its meeting of November 9, 1998, the City Council adopted Ordinance No. 2227 granting a conditional zone change on the property located at 1605 E. Lincoln Road from Single Family Residential (RS) to Commercial General (CG). The City Council also approved a site plan review application for a 5,990 square foot elderly group care facility. Section 3 of Ordinance No. 2227 states "That the zone change granted by Section 2 of this ordinance shall allow only an elderly group care facility. No other commercial use shall be allowed without first obtaining approval thereof through the zone change process." Honorable Mayor and City Council January 23, 2006 Page 9 Ordinance No. 2227, the City Council Minutes and tape recording dated October 26, 1998, the Planning Commission Final Order dated October 9, 1998, the Planning Commission Staff Report dated September' 3, 1998, the Planning Commission Minutes and tape recording of September 3, 1998 and the formal interpretation application packet are attached to this report. FINANCIAL IMPACT: There is no financial impact associated with the recommended action. Attachments: Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F: Exhibit G: Attachment A: Attachment B: Ordinance No. 2227 City Council Minutes and portion of the tape recording regarding the public hearing for the 1605 East Lincoln Road site dated October 26, 1998 Planning Commission Final Order dated October 9, 1998 Planning Commission Staff Report dated September 3, 1998 Planning Commission Minutes and portion of the tape recording regarding the public hearing for the 1605 East Lincoln Road site dated September 3, 1998 Application Packet Building Permit Floor Plan (Sheet A-3 dated March 8, 1999) Site Location Map Photos of the subject site The attachments for Item IOA are not Included in the agenda packet. The entire document has been given to the City Council and is available for review by the public in the City Recorder's office, in the City Administrator's office, and at the reference desk of the Woodburn Public Library. '70 WOODBURN 11A January 18, 2006 TO: FROM: SUBJECT: Mayor and City Council through City Administrator Ben Gillespie, Finance Director Ordinance Amending the Business Registration Ordinance RECOMMENDATION: Council adopt the attached ordinance. BACKGROUND: At its January 9, 2006 meeting the Council reviewed a proposal to amend the existing Business Registration Ordinance, and directed staff to return an ordinance effecting the proposed changes. A copy of the existing ordinance is attached, as is the staff report outlining: The need for the amendment The process that led to the proposed changes The methodology used to calculate rates The initial proposal was reviewed by the Budget Committee, which offered some guidance. Subsequently a group from the Chamber of Commerce reviewed the staff work and endorsed the final product. FINANCIAL IMPACT: Under the amended ordinance revenue is expected to increase $28,000 to $47,000 in lhe current year. In 2006-07 revenue is expected to increase an additional $13,000 to $60,000. Agenda Item Review: City Administrato~ City Attorneyl~j lk ~ 71 COUNCIL BILL NO. ORDINANCE NO. AN ORDINANCE AMENDING ORDINANCE 2055 (THE BUSINESS REGISTRATION ORDINANCE) AND SETTING AN EFFECTIVE DATE. WHEREAS, additional revenue is needed to fund the Police Community Response Team; and WHEREAS, the Business Registration ordinance was last updated in 1991; and WHEREAS, the City recognizes the need to register all businesses operating within the City limits; and WHEREAS, the business community has endorsed the revised fee structure; NOW, THEREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. Section I of Ordinance 2055 is amended as follows: Section 1. Purpose. This ordinance is enacted, except as otherwise specified, to assist law and code enforcement to recoup the necessary expenses required to undertake the administration and enforcement of this ordinance, to provide revenue for municipal purposes, and to provide for the health, safety and welfare of the citizens of Woodburn through the registration of business. The payment of a registration fee required hereunder and the acceptance of such fee and issuance of a business registration certificate by the City shall not entitle the registrant to carry on any business not in compliance with all the requirements of City ordinances and all other applicable laws. Section 2. Section 3E of Ordinance 2055 is repealed. Section 3. Section 3L of Ordinance 2055 is repealed. Section 4. Section 4C of Ordinance 2055 is amended as follows: C. A person engaged in business in more than one location, or in more than one business registered under this ordinance at the same location, shall make a separate application for each business or location, provided however that the fee for second and subsequent businesses shall be $20.00. Warehouses Page 1 - COUNCIL BILL NO. ORDINANCE NO. '7'2 and distributing plants used in connection with and incidental to a business shall not be deemed a separate place of business. Separately franchised operations shall be deemed separate businesses even if operated under the same name. Section 5. Section 4E of Ordinance 2055 is amended as follows: E. No person shall maintain or operate two or more residential rental units without first obtaining a business registration certificate and paying the prescribed fees. Section 6. Section 6 of Ordinance 2055 is amended as follows: Section 6. Fee. The annual business registration fee required by this ordinance shall be fifty dollars ($50.00), except if the business is determined to constitute a home occupation under the Woodburn Development Ordinance by the Community Development Department, then the fee shall be twenty-five dollars ($25.00). Section 7. Section 7 of Ordinance 2055 is amended as follows: Section 7. Use of Revenue. The net revenue derived after deducting the costs of administering and accounting for business registration shall be dedicated to support the activities of law enforcement, including code enforcement. All net revenue in FY 2005-06 and in all future fiscal years collected from business license registration fees in excess of net amounts collected in FY 2004-05 shall be dedicated to supporting the Police Department's Community Response Team. Permanent elimination of the team or a reduction in its FY 2005-06 staffing level by departmental or City Council policy choice shall require a review of this ordinance for the purpose of reducing business license fees. Section 8. Section 8A of Ordinance 2055 is amended as follows: A. Transfer: In the event of the transfer of ownership of any business, the applicable registration certificate may be transferred by application to the Finance Director. An application shall be accompanied by a transfer fee this fee to be twenty dollars ($20.00). Section 9. This ordinance shall be in full force and effect on March 1, 2006. Page 2- COUNCIL BILL NO. ORDINANCE NO. 73 Approved as to form: City Attorney Date Approved: Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder Kathryn Figley, Mayor ATTEST: Mary Tennant City Recorder City of Woodburn, Oregon Page 3- COUNCIL BILL NO. ORDINANCE NO. "/4 January 3, 2006 TO: FROM: SUBJECT: Mayor and City Council through ,~i~y Administrator Ben Gillespie, Finance Director J~l Revision to Business Registration Ordinance RE~OM~ENDATI~)N: Direct staff to prepare an ordinance reflecting the Council's discussion. BACKGROUND: Adoption of the Police Community Resource Team (CRTJ relied in part on increased fees from Business Registration Fees. Increased Code Enforcement Activity was proposed as port of the CRT. Code Enforcement benefits the business community directly, establishing the nexus to Business Registration fees. To fully fund the CRT, revenue from Business Registration fees needed to be increased to $60,000. Staff surveyed 23 other Oregon cities to determine what business activities are included/excluded, what their rate structures are, and how their ordinances are administered. The best of those ideas were incorporated into Woodbum's proposed ordinance. As the survey and analysis was being done, staff was also scouring other records to identify any businesses that were not registered. Businesses that were registered were concerned that other businesses were avoiding the registration and the fees. Staff reviewed the yellow pages Jmultiple editions), a reverse directory, the Secretary of State's Division of Corporations register, the County Assessor's real property records, City water/sewer customer lists, and the Chamber of Commerce membership to determine unregistered businesses. Proposals were presented to the Budget Committee and the Chamber of Commerce, both of which had some concerns. Modifications were made for the budget committee and a review committee of Chamber members was established to finalize the changes to the ordinance. Staff met with representatives of the Chamber in December, and they endorsed the final changes. Agenda Item Review: City Administrato~~/~/ 7~41 City Attorney Finance Mayor and City Council Januan/3, 2006 Page 2 Several changes will be incorporated in the proposed ordinance: · Providing for Code Enforcement is added specifically as a purpose of the ordinance. The exemption for businesses grossing less that $2,500 per year is eliminated. The provision proved almost impossible to enforce, and in most case activities that would qualify under this exemption will be exempted as garage sales. The exemption for Home Occupations is eliminated. The business community pointed out that many home occupancies compete directly with store front businesses and receive an unfair advantage if they do not have to register and pay the fee. A business opening a second or subsequent location is subject to a $20.00 annual fee per each additional location. Persons operating two or more residential rental units must register. Under the current ordinance owners of a single rental unit must register. The new provision makes a distinction between those renting a single unit to supplement their income and those whose business is operating rental properties. The revised fee schedule eliminates the application fee. The Chamber of Commerce suggested keeping the fees simple and agreed that annual fees set at the break even point would be preferred to a one-time application fee plus annual renewal fees. Annual fees are set at $50 for storefront businesses and $25 for home occupancy businesses. The current fee is $35 per year. · The fee for transferring ownership is increased from $10 to $20. · A substantial change in the level of service provided by the Community Response Team will trigger a review of the Business Registration rates. FINANCIAL IMPACT.: Revenue from Business Registration fees is expected to increase from $20,0(X) to $60,000 per year. 76142 VifOODBURN GENERAL ORDINANCES CHAPTER 8 - BUSINESS 8-9.1 8-9.2 ORDINANCE NO. 2055 AN ORDINANCE PROVIDING FOR THE REGISTRATION OF BUSINESS WITHIN THE CITY OF WOODBURN; ESTABLISHING A REGISTRATION PROCESS; AND PROVIDING A PENALTY FOR VIOLATION THEREOF. THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. PvrDose. This ordinance is enacted, except as otherwise specified, to assist law enforcement and nuisance abatement regulations, to recoup the necessary expenses required to undertake the administration and enforcement of this ordinance, to provide revenue for municipal purposes, and to provide for the health, safety and welfare of the citizens of Woodburn through the registration of business. The payment of a registration fee required hereunder and the acceptance of such fee and issuance of a business registration certificate by the City shall not entitle the registrant to carry on any business not in compliance with all the requirements of City ordinances and all other applicable laws. Section 2. ~. For the purpose of this ordinance, the following terms, phrases, words and their derivations shall have meaning given herein unless the context requires otherwise: A. "Business" means all kinds of vocations, occupations, professions, enterprises, establishments, and all kinds of activities and matters, together with all devices, machines, vehicles and appurtenances used therein, any of which are conducted for private profit, or benefit, either directly or indirectly, on any premises in the City. This definition includes, but is not limited to, any transacfion involving the rental of property, the manufacture or sale of goods, or the sale or rendering of services other than as an employee. B. 'The City" means the City of Woodburn, Oregon. C. "City Council" means the City Council of the City of Woodburn, Oregon. D. "Contractor' means any person registered under ORS 701.055 or who undertakes to or offers to undedake for a consideration to furnish labor and/or material necessary or required to construct, reconstruct, alter, repair, or add to any building, bddge, ditch, flume, reservoir, well, fence, street, sidewalk, machinery and all other structures and superstructures. E. "Employee" means any individual who performs services for another individual or organization having the dght to control the employee as to the services to be performed and as to the manner of performance. PAGE1 ORDINANCE NO. 20~.~ 77 WOODBURN (~ENERAL ORDINANCES CHAPTER 8 - BUSINESS 8-9.2 8-9.3 F. "Garage Sale" means a commercial activity, open to the public, conducted at a private residence where personal property is sold, or auctioned to others, provided the number of sale days at a particular residence does not exceed three (3) days per occurrence, and no more than two (2) occurrences per calendar year. G. "Person" means and includes individual natural persons, partnerships, joint ventures, societies, associations, clubs, trustees, trusts or corporations or any officers, agents, employees or any kind of personal representatives thereof, in any capacity, either on that person's own behalf or for any other person, under either personal appointment or pursuant to law. H. "Premises" means and includes all lands, structures, places and also the equipment on appurtenances connected or used therewith any business, and also any personal property which is affixed to or is otherwise used in connection with any such business conducted on such premises. I. "Residential Rental Unit" means a dwelling containing one or more separate living quarters, one or more of which is rented, leased, or let in exchange for full or partial monetary compensation. Section 3. ~. A. Nothing in this ordinance shall be construed to apply to any person transacting or carrying on any business within the City of Woodburn which is exempt from taxation by the City by virtue of the Constitution of the United States or the Constitution of the State of Oregon. B. No person whose income is based solely on a wage or salary shall, for the purpose of this ordinance, be deemed a person transacting or carrying on any business in the City, and it is the intention that all registration taxes and fees will be borne by the employer. C. Any business paying a franchise tax or transient occupancy tax under City ordinances is exempt from the requirements of this ordinance. D. Persons whose sole business activity is making deliveries or taking orders from duly registered businesses within the City are exempt from this ordinance. E. Persons whose gross receipts from business conducted both within and without of the City amount to less than .$2,500 per calendar year; provided that any such person shall upon demand by the City provide proof verifying said compliance amount and provided further that this particular exemption does not supersede the applicability of the exemption for garage sales as defined in this ordinance. PAGE2 ORD~U'~CE NO. 2055 78 WOODBURN GENERAL ORDINANCES CHAPTER 8 - BUSINESS 8-9,3 8-9.4 F. The operation of a business, display or sales space at any special event with a duration of three days or less shall not be required to register under this ordinance. A special event is deemed to be a City-endorsed activity for the benefit of the community. G. Any producer of farm products raised in Oregon, produced by themselves or their immediate families, who sell, vend, or dispose of such products within the City. H. Nonprofit organizations, religious organizations, financial organizations, civic organizations and clubs wishing to canvass for funds or sell door-to-door to raise funds, or conduct fund-raising events to be used solely for the purpose for which the organization was created, and from which no third party receives a profit. I. A builder who is registered under ORS 701.055 and is employed as a subcontractor working for a contractor possessing a valid business registration issued by the City of Woodburn. J. Garage sales as defined in this ordinance. K. Any person required to be licensed through any other City ordinance including, but not limited to activities such as "merchant police," peddlers and solicitors," "public dances," or other licensed activities. L. Home Occupations as defined in Section 1,270 of Ordinance 1807 known as the City of Woodburn Zoning Ordinance. Section 4. Registration Reauired. A. No person shall engage in any business within the City or transact any business specified in this ordinance, without first obtaining a registration certificate and paying the fee prescribed. The provisions of this ordinance shall be in addition to any other fee or registration requirements imposed by the City of Woodburn, unless otherwise specified. B. The agent or agents of a non-resident proprietor engaged in any business for which registration is required by this ordinance shall be liable for any failure to comply with the provisions of this ordinance, or for any penalty assessed under this ordinance, to the extent and with like effect, as if such agent or agents were themselves the proprietors or owners of the business. C. A person engaged in business in more than one location, or in more than one business registered under this ordinance at the same location, shall make a separate application for each business or location, provided however that only one registration fee shall be applicable to said person. Warehouses and distributing plants used in connection with and incidental to a business shall not be deemed a separate place of business. Separately franchised operations shall be deemed separate businesses even if operated under the same name. PAGE3 ORDINANCE No. 2055 79 WOODBUi?,N GENERAL OP, DINANCE$ CHAJ:~TER I$ - ~U$1NE$$ 8-9.4 8-9,5 D. A person representing himself/herself, or exhibiting any sign or advertisement that he/she is engaged in a business within the City shall be deemed to be actually engaged in such business and shall be liable for the payment of such registration fee and subject to the penalties for failure to comply with the requirements of this ordinance. E. No person shall maintain or operate one or more residential rental units without first obtaining a business registration certificate and paying the prescribed fees. Section 5. Application. A. Application for business registration, and for renewal of business registration shall be made to the Finance Department upon forms furnished by the City. Each application shall state: The name and address of the proposed business location in the (2) A description of the business activity to be carried on. (3) The name, address, and business phone number of the applicant or agent. (4) Phone number, in case of emergency, of at least one person other than the above applicant or agent. (5) Description of any hazardous, chemical, or flammable materials which may be stored or utilized at the business location, as defined under ORS 466.605. (6) The name, address, and business phone number of the proprietor if different than that of the applicant. (7) Number of employees. (8) Occupational license identification if required by the State of Oregon. B. The City Administrator or his/her designee may require the applicant to supply any additional information necessary for administrative purposes. C. The annual registration fee shall be paid to the City of Woodburn upon the filing of the application for a new business registration certificate, or upon the annual renewal thereof on the one year anniversary date of the original application. Failure to do so will subject the applicant to a delinquency charge. PAGE 4 ORDNANCE NO. 2055 80 WOODBURN GENERAL ORDINANCES CHAPTER 8 - BU$1N£$$ 8-9.6 8-9.10 Section 6. Fee. A. The annual business registration fee required by this ordinance shall be thirty-five dollars {$35.00] per year for the initial or new business registration. B. The annual renewal business registration fee required by the ordinance shall be twenty-five dollars ($25.00) per year. Section 7. Use of Revenue. The net revenue derived after deducting the costs of administering and accounting for business registration shall be dedicated to support the activities of Code Enforcement. Section 8. Transfers, Relocations and Terms of Realstration. A. Transfer: In the event of the transfer of ownership of any business, the applicable registration certificate may be transferred by application to the Finance Director. An application shall be accompanied by a transfer fee this fee to be ten dollars ($10.00). B. Relocation of Existing Business: In the event a business relocates, the business shall reapply to the Finance Director to transfer the business registration. C. Registration Term: A business registration issued under this ordinance shall be valid from the date of issuance until the following annual anniversary date. Section9. Revocation of Repistration. The City Administrator, upon determining that a business activity, establishment or device is violating this ordinance, other City ordinances, or State or Federal law, shall notify the business in writing that the registration is to be revoked. The notice shall be given at least 15 days before the revocation, if the violation ends within 15 days, the City Administrator may discontinue the revocation proceedings. A notice of revocation shall state the reason for the revocation and inform the business of the provisions of appeal. Section 10. Suspension of Reaistration. Upon determining that a business activity or device presents an immediate danger to person or property, the City Administrator may suspend the business for the activity or device at once. The suspension shall take effect immediately upon notice af the suspension's being received by the business, or being delivered to the business address as stated on the application that is being suspended. The notice shall be mailed to the business and state the reasan for the suspension and inform the business of the provisions for appeal. The City Administrator may continue suspension so long as the reason for the suspension exists or until a determination on appeal regarding the suspension is made. PAGE 5 ORDNANCE No. 2055 WOODBURN GENERAL ORDINANCES (:,HAPTER ~ - ~USINESS 8-9.11 8-9.13 Section 11. Apoeal. A. A business whose registration has been denied renewal, has been suspended, or is to be revoked, may within 15 days after the notice of denial, suspension or revocation is mailed, appeal in writing to the City Council. The appeal shall state: (1) The name and address of the appellant; (2) The nature of the determination being appealed; (3) The reason the determination is incorrect; and (4) What their proposed determination of the appeal should be. B. An appellant who fails to file such a statement within the time permitted waives his or her objections, and the appeal shall be dismissed. If a notice of revocation is appealed, the revocation does not take effect until final determination of the appeal. The City Council shall hear and determine the appeal on the basis of the written statement and such additional evidence as it considers appropriate. C. At the hearing, the appellant may present testimony and oral argument, personally or by counsel, and any additional evidence. The rules of evidence as used by courts of law do not apply, and the decision of the City Council after the hearing is final. Section 12. Display Required. All registration certificates issued in accordance with this ordinance shall be openly displayed in the place of business or kept on the person or on the vehicle of the person registered. Failure to display or carry such registration shall be deemed a violation of this ordinance. Section 13. Disclaimers and Exemr)tions. A. The levy or collection of a registration fee upon any business shall not be construed to be a permit by the City to the person engaged therein in the event such business shall be unlawful, illegal or prohibited by the laws of the State of Oregon or the United States, or ordinances of the City. B. Nothing herein contained shall be taken or construed os vesting any right in any registration as a contract obligation on the port of the City. No person having paid the fee required and having made application for a business registration shall be entitled to any refund. C. None of the fees or registration requirements provided for in this ordinance shall be required if the applicant is a municipality. PAGE6 ORDNANCE HO. 2055 82 WOODBURN GENERAL ORDINANCES CHAPTER t~ - BUSINESS 8-9.14 8-9.1 · Section 14. Viglation - PqnallY. A. A violation of any provision of this ordinance constitutes a Class 2 civil infraction and shall be dealt with according to the procedures established by Ordinance 1998. Each day of the violation of this ordinance shall constitute a separate violation. B. A finding that a person has committed a violation of this ordinance shall not act to relieve the person from payment of any unpaid business fee, including delinquent charges, for which the person is liable. The penalties imposed by this section are in addition to and not in lieu of any remedies available to the City. C. If a provision of this ordinance is violated by a firm or corporation, the officer or officers, or person or persons responsible for the violation shall be subject to the penalties imposed by this section. Section 1.5. Delinauency Charae. The fee required in this ordinance shall be supplemented by a delinquency charge equivalent to an additional 50% fee if not paid within 15 days after the anniversary date of the original issuance of the business registration. The unpaid fee constitutes a debt to the City upon which the City may initiate legal action to collect. Section l&. .~L~_q.lJJJJ~. Each portion of this ordinance shall be deemed severable from any other portion. The unconstitutionality or invalidity of any portion of this ordinance shall not invalidate the remainder of this ordinance. Section 17. ~..G.t.L~_e._J~3L~. This ordinance shall be in full force and effect on April 1,1991. Passed by the Council February 2,~, 1991, approved by the Mayor February 26, 1991. PAGE'~ ORDnanCE No. 2055 83 11B Januaw 13,2006 TO: FROM: SUBJECT: Honorable Mayor and City Council through City Administrator Woodburn I-5 Interchange Management Overlay District Agreement RECOMMENDATI~)N: Approve the attached Resolution authorizing the City Administrator ta sign the Woodburn Interchange Agreement that outlines ODOT and City responsibilities for the Interchange Management Overlay District. BACKGRgUND: During the periodic review process the City developed a new Transportation System Plan (rsP). The City has also been working with ODOT for many years to develop a plan for modernization of the existing Waadburn I-5 Interchange. Last year a majar step was completed with the completion of the Environmental Assessment for the interchange project. The City is working with ODOT to obtain the remaining funding for final right of way purchases and construction of the modernization project. As a part of the TSP and interchange modernization effort, ODOT wanted to address issues related to preserving the function, aperations and capacity af the new interchange over the 20-year planning horizon for the project. ODOT and the City developed the concept of an interchange overlay district that established a peak hour trip budget associated with specific tax lots in the designated district. The peak hour trip budget is applied to industrial and commercial development anly. Trips generated by residential uses in the district were not budgeted and are allowed in accordance with proper zoning ODOT in conjunction with the City established responsibilities for the monitoring and evaluation of development that occurred in the overlay district during the 2e-year planning horizon for the interchange improvement. These responsibilities. have been outlined in an intergovernmental agreement that covers management of the overlay district. The specifics of the Interchange Management Overlay District are included in the TSP and in the Woodburn Development Ordinance. Agenda Item Review: City Administrato[~ 84 City AftorneyJ~//4~ Finance- ,_'.~/~ Honorable Mayor and City Council January ]3, 2006 Page 2 ~: The City and ODOT coordinated an acceptable program to manage traffic at the modernized I-5 Interchange through development of the TSP and the Interchange Environmental Assessment. The desire is that the operations and capacity of the interchange be managed over the 20-year planning horizon so that operational capacity of the interchange remains at acceptable levels. Maintaining operational capacity at the interchange is impodant to the City since is serves to encourage desired industrial development of the proposed industrial urban growth boundary expansion. The agreement and the Interchange Management Overlay District sections of the TSP and the Woodburn Development Ordinance contain the specific details regarding haw peak hour trips in the averlay district will be managed and the specific parcels that are included in the peak hour trip program. There are only commercial and industrial parcel included in the trip budget portion of the interchange management plan. The agreement outlines ODOT, City and shared responsibilities for monitoring and evaluation of development in the overlay district. Staff requests that the resolution autharizing the City Administrator to sign the agreement on behalf of the city be approved. FINANCIAL IMPACT: As land within the overlay district is approved staff time will be required to monitor and review development praposals. Na other known financial impact to the City at this time. COUNCIL BILL NO. RESOLUTION NO. A RESOLUTION ENTERING INTO WOODBURN INTERCHANGE AGREEMENT NO. 22933 WITH THE STATE OF OREGON AND AUTHORIZING THE CiTY ADMINISTRATOR TO SIGN SUCH AGREEMENT. WHEREAS, the State of Oregon acting through the Oregon Transportation Commission is authorized to enter into agreements for the performance of any or all functions and activities that a party to the agreement, its officers, or agents have the authority to perform pursuant to ORS 190.110, and WHEREAS, the I-5 Woodbum Interchange and OR 214/219 are part of the state highway system and under the jurisdiction of the Oregon Transportation Commission, and WHEREAS, the State of Oregon, Department of Transportation, and the City of Woodbum intend to make a major investment in improving the I-5 Woodbum Interchange and OR 214/219 in the vicinity of the interchange, and WHEREAS, the State of Oregon, Department of Transportation, and the City of Woodbum are committed to protect this investment and preserve the function, operations and capacity of the I-5 Woodbum Interchange and OR 214/219 in the vicinity of the interchange, and WHEREAS, the State of Oregon, Department of Transportation, and the City of Woodbum have developed a variety of documents including an interchange management plan, an updated land use plan and related ordinances to provide direction for this investment and to allow the improved I-5 Woodbum Interchange to function acceptably through the forecast 20-year planning horizon, and WHEREAS, the State of Oregon, Department of Transportation, and the City of Woodbum have developed an agreement to jointly monitor and evaluate the function, operations and capacity of the I-5 Woodbum Interchange through an Interchange Management Overlay District, NOW THEREFORE; Page 1- COUNCIL BILL NO. RESOLUTION NO. 86 THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the City of Woodburn enter into Woodbum Interchange Agreement No. 22933, which is affixed as Attachment 'A' and by this reference incorporated herein, with the State of Oregon acting by and through the Oregon Department of Transportation. Section 2. That the City Administrator of the City of Woodbum is authorized to sign said agreement on behalf of the City. Approved as to form::~- f~O'-/~~ City Attomey 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 8'/ Janua~ 11,2006 ATTAGHMENT~ Page I of I~ Misc. Contracts & Agreements No. 22,933 INTERGOVERNMENTAL AGREEMENT Woodburn Interchange City of Woodburn THIS AGREEMENT is made and entered into by and between THE STATE OF OREGON, acting by and through its Department of Transportation, hereinafter referred to as "ODOT," and the CITY OF WOODBURN, acting by and through its designated officials, hereinafter referred to as "CITY." RECITALS 1. By the authority granted in ORS 190.110, state agencies may enter into agreements with units of local government for the performance of any or all functions and activities that a party to the agreement, its officers, or agents have the authority to perform. 2. Interstate 5 (I-5), Oregon 214 and Oregon 219 (also known as Hillsboro-Silverton Highway) are a part of the state highway system and under the jurisdiction and control of the Oregon Transportation Commission. 3. ODOT and City intend to make a major investment in improving the I-5 Woodburn Interchange and Oregon 2141219 in the vicinity of the Woodburn Interchange. 4. ODOT and City are committed to protect this investment and preserve the function, operations and capacity of the Woodburn Interchange to safely accommodate statewide and regional travel through City along I-5 and between City and I-5 via Oregon 214/219, and to support City's industrial job creation and growth objectives as expressed in its 2005 Comprehensive Plan. 5. ODOT and City have developed a variety of documents including an interchange area management plan, an updated land use plan and related ordinances to provide direction for this investment and keep it functioning acceptably through the forecast 20-year planning horizon. 6. These actions are expressed in the City's 2005 Comprehensive Plan, Transportation System Plan (TSP), Woodburn Development Ordinance 2.116 (WDO), and in the Woodburn Interchange Area Management Plan (lAMP). 7. WDO, Section 2.116, entitled Interchange Management Area (IMA) Overlay District and provided as Exhibit A, sets development thresholds and performance standards for an area identified in the 2005 Woodburn TSP and labeled Figure 9-1 IMA Overlay District, provided as Exhibit B. 8. The Woodburn lAMP is scheduled to be adopted by the Oregon Transportation Commission and identifies implementation of the standards and thresholds of the IMA Overlay District as a key component of the lAMP. The lAMP identifies that the 88 City of Woodburn/ODOT Agreement No. 22,933 ATTACHMENT Page ~3. of City is responsible for implementing the provisions of the WDO Section 2.116, IMA Overlay District. Section 2.116.05 of the WDO has provisions that call for development within the IMA Overlay District to be jointly monitored and evaluated by the City and ODOT on an ongoing basis. NOW THEREFORE, the premises being in general as stated in the foregoing recitals, it is agreed by and between the parties hereto as follows: TERMS OF AGREEMENT 1. ODOT and City enter into this Agreement to establish and define procedures for periodically monitoring and evaluating the implementation of the City's TSP and WDO within the IMA Overlay District, fulfill ODOT's transportation system management objectives by preserving interchange capacity and to support the City's industrial job creation objectives as stated in the Woodburn Comprehensive Plan. 2. ODOT and City agree that the costs for undertaking the activities needed to administer, monitor, and evaluate the IMA Overlay District development shall be individually borne by each and that no funds shall be exchanged to fulfill the terms of this Agreement, although ODOT technical assistance will be available to the City to help collect data and conduct analysis needed to administer the Overlay District. 3. ODOT and City agree that this Agreement may be amended if the premises or conditions upon which it is based change. Any amendment shall be collaboratively developed by City and ODOT. 4. ODOT and City agree that this Agreement shall be in force until build out of the IMA Overlay District area is complete (meaning that all land within the overlay zone is developed or has been committed for development through development approvals), except as provided in the General Provisions section below. CiTY OBLIGATIONS 1. City shall amend its land use action application forms to provide a simple and direct mechanism for staff to collect traffic data needed to track development in the IMA Overlay District. City shall coordinate with ODOT in the development of its amended land use action application forms. City shall review all land use applications for any tax lot listed in Exhibit A, Table 2.116.1 Vehicle Trip Budget by Parcel, and make a determination of PM peak hour trips that will be generated by the development based on the Traffic Impact Analysis, if required, or an assessment of trip generation potential made by the City Engineer in accordance with the most recent version of the Institute of Transportation Engineer's Trip Generation Manual. 2. Traffic Impact Analyses, when required, shall be prepared in accordance with ODOT's Traffic Impact Analysis Guidelines. 2 89 City of Woodburn/ODOT Agreement No. 22,933 AI'"I'AC ~IM ENT.-.i~--- 3. Land use applications to be reviewed and assessed for trip budget calculations include commercial, industrial, public, and semi-public land use applications. The City will also assess vehicle trips resulting from building permits for new residential construction, by housing type within the IMA Oveday District. 4. City shall maintain an electronic ledger of all trips expected to be produced by land use approvals or building permits for new construction for all tax lots identified in Exhibit A, Table 2.116.1 within the IMA Oveday District and the ledger shall be organized by tax lot, address, and zoning designation. The City shall also maintain a record of land divisions for tax lots identified in Table 2.116.1 Vehicle Trip Budget by Parcel, to allow for monitoring of new construction on newly-created lots or parcels. 5. City shall provide to ODOT an IMA Oveday Distdct Trip Generation Summary Report every three years for incorporation into ODOT's triennial IMA Evaluation Report, City shall provide the electronic ledger annually if requested. 6. City shall participate with ODOT in the triennial review and evaluation of development and traffic growth within the IMA Overlay District. 7. City shall, as required by its development code, notify ODOT of all land use applications that generate additional traffic within the IMA Overlay Distdct and shall fulfill all current requirements to collaborate with ODOT on matters affecting ODOT transportation facilities. 8. The Woodbum City Public Works Program Manager, currently Randy Rohman, shall be the principal contact within the City for matters relating to this Agreement and oversight and maintenance of the trip budget ledger. City shall notify ODOT in writing of any changes affecting this principal contact. ODOT OBLIGATIONS 1. ODOT shall maintain traffic volume and crash data for ODOT transportation facilities within the IMA Overlay District sufficient to support the triennial evaluation process. 2. ODOT shall collect and maintain traffic volume data for Marion County and City transportation facilities as necessary within the IMA Overlay District or its proximity as needed to support the triennial evaluation process. This may, at the discretion of ODOT, include an origin-destination survey. 3. ODOT shall prepare a triennial IMA Evaluation Report using its own traffic and crash data and the land use data provided by the City. 4. ODOT shall, in collaboration with the City, develop and provide to the City an electronic trip generation ledger for use in tracking and monitoring the IMA Overlay District trip budget. 5. ODOT shall provide technical support to the City to assist in evaluating and amending all applicable local land use application forms to support monitoring and maintenance of the IMA trip budget ledger. 3 90 City of Woodburn/ODOT Agreement No. 22,933 ATTACHMENT~'~-.-..._ Page ~ of ~ 6. ODOT shall, upon request from the City, be available to consult and provide input regarding the assessment of potential trip generation and maintenance of the IMA Overlay District trip generation ledger. 7. ODOT shall, upon request from the City, be available as needed to consult and provide input regarding the effect of implementing Transportation Demand Management (TDM) measures pursuant to WDO Section 2.116.08.C. 8. ODOT shall provide comments on completed Traffic Impact Analyses within 30 days of receiving them from the City as prescribed by WDO Section 2.116 of the IMA Overlay District. 9. ODOT shall participate with City in the triennial review and evaluation of development and traffic growth within the IMA Overlay District. 10. ODOT shall notify the City of any proposed amendments to the Woodburn lAMP and shall collaborate with the City in developing any such changes. 11.ODOT's Area 3 Planner, currently Dan Fricke, shall be the principal contact within ODOT for matters relating to this Agreement. ODOT shall notify the City in writing of any changes affecting this principal contact. JOINT OBLIGATIONS 1. ODOT and City agree that development within the IMA Overlay District shall be jointly monitored and evaluated by ODOT and the City. 2. ODOT and City agree that each party shall collect and maintain the information needed to conduct pedodic evaluations of the IMA Oveday Distdct in accordance with the specific obligations for each as described in this Agreement. 3. ODOT and City agree that periodic evaluations shall take place every three (3) years beginning in October 2008. 4. ODOT and City agree that the triennial IMA Evaluation Report prepared by ODOT shall be the basis for evaluating the implementation of the WDO Section 2.116, IMA Overlay District. 5. ODOT and City agree that the provisions of the WDO Section 2.116, IMA Overlay Distdct may change periodically in response to information gained through the pedodic monitoring and evaluation process. ODOT shall be provided notice of any proposed change and any change shall be collaboratively developed by City and ODOT. GENERAL PROVISIONS 1. This Agreement may be terminated by either party upon 30 days' notice, in writing and delivered by certified mail or in person. Either party may terminate this 4 91 City of Woodburn/ODOT Agreement No. 22,933 ATTACHMENT Page ._.~ of., Agreement effective upon delivery of wdtten notice to the other party under any of the following conditions: a. If the other party fails to provide services called for by this Agreement within the time specified herein or any extension thereof. bo If the other party fails to perform any of the other provisions of this Agreement or so fails to pursue the work as to endanger performance of this Agreement in accordance with its terms, and after receipt of written notice fails to correct such failures within 10 days or such longer period as the aggrieved party may authorize. Co If either party fails to receive funding, appropriations, limitations or other expenditure authority at levels sufficient to pay for the work provided in the Agreement. If Federal or State laws, regulations or guidelines are modified or interpreted in such a way that either the work under this Agreement is prohibited or if either party is prohibited from paying for such work from the planned funding source. 2. Any termination of this Agreement shall not prejudice any rights or obligations accrued to the parties pdor to termination. e This Agreement and attached exhibits constitute the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing and signed by both parties and all necessary approvals have been obtained. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given. The failure of ODOT to enforce any provision of this Agreement shall not constitute a waiver by ODOT of that or any other provision. IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their seals as of the day and year hereinafter written. The Oregon Transportation Commission on June 18, 2003, approved Delegation Order No. 2, which authorizes the Director to approve and execute agreements for day-to-day operations. Day-to-day operations include those activities required to implement the biennial budget approved by the Legislature, including activities to execute a project in the Statewide Transportation Improvement Program. Signature Page to Follow 5 93 City of Woodburn/ODOT Agreement No. 22,933 On November 10, 2004, the Director of the Oregon Department of Transportation approved Subdelegation Order No. 2, in which the Director delegates authority to the Region Managers authority to approve and sign agreements up to $75,000 when the work is related to a project included in the Statewide Transportation Improvement Program, other system plans approved by the Oregon Transportation Commission or in a line item in the biennial budget approved by the Director. CITY OF WOODBURN, by and through its designated officials STATE OF OREGON, by and through its Department of Transportation By By Title Date By Title Date APPROVED AS TO FORM By City Legal Counsel Date Agency Contact: City Public Works Program Manager City of Woodburn 270 Montgomery Street Woodburn OR 97071 Region 2 Manager Date APPROVAL RECOMMENDED By Region 2 Planning and Development Manager Date APPROVED AS TO LEGAL SUFFICIENCY By Assistant Attorney General Date: 6 93 ATTAGHMENT~ Page _~- of ,,, ~'~ (Thc following Section 2.116 is a new proposed zoning district) IEXHIBIT A I 2.116 Interchange Management Area (IMA) Overlay District 2.116.01 Purpose The purpose of this overlay district is to preserve the long-term capacity of Woodbum's !-5 Interchange with Highway 214, in coordination with the Oregon Department of Transportation (ODOT). Preserving the capacity of this interchange is an essential element of the City's economic development strategy, because continued access to !-5 is necessary to attract and maintain basic employment within the Woodbum Urban Growth Boundary (UGB). Section ZlI6 complements the provisions of the Southwest Industrial Reserve (SWIR) District by ensuring that industrial land is retained for targeted basic employment called for in the Woodbum Economic Opportunities Analysis (EOA) and the Economic Development Strategy (EDS). Section Z 116 also ensures that needed industrial, commercial and residential land within the IMA Overlay District is protected from commercial encroachment. These goals are met by establishing trip generation budgets as called for in Transportation Policy H-7. I of the Woodbum Comprehensive Plan. The parcel budgets are intended to be high enough to accommodate peak hour trips anticipated by the 2005 Woodbum Comprehensive Plan (WCP) and Transportation Systems Plan (TSP), but Iow enough to restrict unplanned vehicle trips that could adversely affect the interchange. 2.116.02 Boundary of the IMA Overlay District The boundary of the [MA Overlay District is shown on the Woodburn Comprehensive Plan Map and Zoning Map. 2.116.03 Applicabili~ Thc provisions of Section 2.116 shall apply to all Type II - V land use applications that propose to allow development that will generate more than 20 peak hour vehicle trips (based on the latest Institute of Transportation Engineers Trip Generation Manual) on parcels identified in Table Zii6.1. 'Fhe provisions of Section Z!16.07 shall apply to all properties within the boundary of the IMA. If'oodburn Development Orcilnance ATTAC~M ENT~..~ Page _'.'.'.'.'.'.'.'.'~ of ~ 2.116.04 Vehicle Trip Budgets Section 2.116 establishes a total peak hour trip generation budget for planned employment (commercial and industrial) land uses within the Interchange Management Area - defined as the IMA Trip Budget, and a trip budget for each vacant commercial or industrial parcel - defined as the parcel budget. A. The IMA District Trip Budget Thc IMA Trip Budget l'or vacant commercial and industrial parcels identified in Table Z 116.1 is 2,500 peak hour vehicle trips (An estimated !,500 additional peak hour residential trips are planned within the IMA District). The IMA Trip Budget will be allocated to parcels identified in Table Z 116.1 on a first developed - first served basis. B. 2005 (Initial) Vehicle Trip Budget by Parcel The parcel budget for each vacant commercial or industrial parcel within the IMA Overlay District is shown on Table ZII6.1. Parcel budgets are based on I I peak hour trips per developed industrial acre, and 33 peak hour trips per developed commercial acre. '['he parcel budget for each parcel will be reduced in proportion to actual peak hour vehicle trips generated by new development on any portion of the parcel. The City may allow development that exceeds the parcel budget for any parcel in accordance with Section Z 116. 08. B. (Table on next page.) Woodburn Development Ordinance 95 ATTAGHMENT-~'~ Pe, Ge ~ of .-..L.,~-.- Table 2.116.1. Vehicle Trip Budget by Parcel (Parcel Budget) Assessor Map and App[icabl~Co~prehensive Plan ' Vacant Maximum Peak Tax Lot Number Designation Buildable Hour Vehicle Acres Trips 052W! ! 00300 SWIR 88 968 052W 13 01100 052W!4 01500 SWIR 96 1056 052Wl4 01600 052W 14 00200 SWIR 22 242 052W 14 00600 052W 14 00800 052W i 4 00900 SWIR 052WI4 01000 109 1199 052WI401100 052W 14 01200 SWIR 4 44 052W23 00100 SWIR 46 506 052W 12AC 04301 Commercial 2 66 052W ! 2C 00604 Commercial I 33 052W 12C 00605 Commercial 3 99 052W 12C 021 O0 Commercial 7 23 i 052W ! 2C 02200 Commercial 6 i 98 052W ! 2C 02300 Commercial 7 23 I 052W 12C 02400 Commercial 2 66 052W 13 01600 Commercial 5 165 052W ! 4 02000 Commercial 8 264 052W ! 4 02100 Commercial 5 165 052W 14 02300 Commercial 6 198 052W ! 3BD 00900 (westerly portion) 052W ! 3BD 01500 Nodal Commercial 052Wi3BD 01600 9 297 052W i 3BD 01700 052W ! 3BD 0 ! 800 Woodburn Development Ordinance/WDO/ 96 ATTAGHMENT- ~ Page ~ of_ I'~ 2.116.05 Administration Section Z 116 delineates responsibilities of the City and ODOT to monitor and evaluate vehicle trip generation impacts on the I-5 interchange from development approved under this section. A. Traffic Impact Analysis (TIA) A TIA is required for ali land use applications subject to the provisions of Section 2.116. The standards for preparing a TIA are found in Exhibit Q, Transportation Impact Analysis Requirements. The TIA must meet City and ODOT administrative rule (OAR Chapter 734, Division 5 I) requirements and shall include an evaluation and recommendation of feasible transportation demand management (TDM) measures that will minimize peak hour vehicle trips generated by the proposed development. B. ODOT Coordination For a land use application subject to the provisions ofSection Z 116: The City shall not deem the land use application complete unless it includes a TIA prepared in accordance with Exhibit Q, TIA Requirements. The City shall provide written notification to ODOT when the application is deemed complete. This notice shall inclUde an invitation to ODOT to participate in the City's facilities review meeting. ODOT shall have at least 20 days to provide written comments to the City, measured from thc date thc completion notice was mailed, ifODOT does not provide written comments during this 20-day period, the City's decision may be issued without consideration of ODOT comments. C. City Monitorin8 Responsibilities The details of City and ODOT monitoring and coordination responsibilities are found in the Woodbum - ODOT Intergovernmental Agreement (IGA). Thc City shall be responsible for maintaining a current ledger documenting the cumulative peak hour trip generation impact from development approved under Section 2.116, compared with the IMA Trip Budget. Thc City may adjust thc ledger based on actual development and employment data, subject to review and concurrence by ODOT. Development Ordinance 97 ATTACHMENT ,, Page._tL_ of 2.116.06 2.116.07 The City will provide written notification to ODOT when land use applications approved under Section 2.116, combined with approved building permits, result in traffic generation estimates that exceed 33% and 67% of the IMA Trip Budget. Vesting and Expiration of Vehicle Trip Allocations This section recognizes that vehicle trip allocations may become scarce towards the end of the planning period, as the !-5 Interchange nears capacity. The following rules apply to allocations of vehicle trips against the IMA Trip Budget: i. Vehicle trip allocations are vested at the time of design review approval. Vehicle trips shall not be allocated based solely on approval ora comprehensive plan amendment or zone change, unless consolidated with a subdivision or design review application. o Vesting of vehicle trip allocations shall expire at the same time as the development decision expires, in accordance with Section 4.102.03-04. Allowed Uses Uses allowed in the underlying zoning district are allowed subject to other applicable provisions of the WDO and Section 2.116. Comprehensive Plan and Zoning Map Amendments Section 2.116.07 applies to all Comprehensive Plan Map amendments within the IMA Overlay District. This section does not apply to Zoning Map amendments that result in conformance with the applicable Comprehensive Plan Map designation, such as Zoning Map amendments that occur when land is annexed to the City. A. Transportation Planning Rule Requirements. Applications for Comprehensive Plan Map amendments, and for Zoning Map amendments shall determine whether the proposed change will significantly affect a collector or arterial transportation facility, and must meet the requirements of Oregon Administrative Rule (OAR) 660-012-0060 and WDO Section $. 104.02- 04. B. Limitations on Comprehensive Plan Amendments. To cnsurc that the remaining capacity of the I-5 Interchange is reserved for targeted employment opportunities identified in Chapter 4 of thc Economic Opportunities Analysis (EOA) and needed housing, this section imposes thc Woodburn Development Ordinance [WDO] 98 ATTACHMENT J~ Page folloWing prohibitions on Comprehensive Plan Map amendments within the IMA Overlay District: Comprehensive Plan Map amendments that will increase the net Commercial land area within the IMA Overlay District shall be prohibited. Comprehensive Plan Map amendments that allow land uses that will generate traffic in excess of the IMA Trip Budget shall be prohibited. 2.116.08 Interchange Capacity Preservation Standards Land use applications subject to the provisions of Section 2.116 shall comply with the following: Ao Cumulative Impact Standard. Peak hour vehicle trips generated by thc proposed development shall not, in combination with other approved developments subject to Section ZIIb, exceed the IMA Trip Budget of 2,500. Bo Parcel-Specific Impact Standard. Peak hour vehicle trips generated by the proposed development shall not exceed the maximum peak hour vehicle trips specified in Table 2.116.1 for the subject parcel, EXCEPT: Development of uses listed in Table Z 1.21 (Section Z 114.03, SWIR Zone Permitted Uses) may be allowed to exceed the maximum,/fthe development will contribute substantially to the economic objectives found in Chapter 2 of the Woodbum Economic Development Strategy (EDS). Residential development on a parcel zoned Commercial shall be allowed to exceed the maximum. Co Transportation demand management (TDM) measures shall be required to minimize peak hour vehicle trips and shall be subject to annual review by the City. Woodburn Development Ordtnonce /WI)O~ 99 ATTACHMI LEBRUN / I I ----,---~ I I I I I I I I PARR Legend Tax Lols L~ Overlay Zone -- Roads N 0 750 1,500 2,250 Feet 3.000 Figure 9-1 Interchange Management Area (IMA) Overlay District ~l CH2MHILL 100 11C January 23, 2006 TO: FROM: SUBJECT: Honorable Mayor and City Council John C. Brown, City Administrator 2006 Transient Occupancy Tax Grant Funds RECOMMENDATION: It is recommended that the City Council: Adopt the resolution amending the Tourism and Economic Development Grant Guidelines; Find that justification exists to suspend the competitive grant process for one year, as provided for by the revised Guidelines; and Authorize the City Administrator to execute an agreement awarding 2006 Tourism and Economic Development Grant funds in an amount not-to-exceed 44,400 to the Woodburn Area Chamber of Commerce. BACKGROUND: Pursuant to Ordinance 2290, two-ninths (22.22%) of the City's transient occupancy tax (TOT) is earmarked for tourism and economic development via a grant program. For 2005-06, this amount is estimated at approximately $44,400. These monies are distributed pursuant to Council-approved grant guidelines and procedures. Notices of funding availability are directed each year to a variety of Woodburn-based non-profit organizations and City departments. Since 2002, a total of $184,558 has been awarded to a total of three organizations. Eighty-eight percent of those funds were awarded to the Chamber of Commerce, to operate a visitor's center, to produce tourism brochures and documents, and to support the overhead costs associated with these activities. In August 2005, the Chamber opened a Travel Information Plaza Visitor's Center at the Woodburn Company Stores. The Center has served several thousand Agenda Item Review: City Administrato ~'~ 101 City Attorney Financ~ Honorable Mayor and City Council January 23, 2006 Page 2 visitors and distributed many thousands of pieces of information since then, and appears, by thase measures, to be highly successful. On October 10, 2005, the Chamber requested the City Council to permanently dedicate its Tourism and Economic Development Grant funds to the Visitor's Center. The Council agreed instead to the concept of suspending the competitive grant process for a one-year period and granting TOT funds for 2006 directly to the Chamber. Council directed staff to prepare the documents necessary to implement such a decision. Additional background regarding this matter can be found in the staff report presented to Council on October 10, 2005 (Attachment 1 ). DISCUSSION: Attached, for your consideration, are revised Grant guidelines that permit the council to suspend, for a one-year period the competitive grant process for the Tourism and Economic Development Grant. A resolution authorizing the revised guidelines, required by the Transient Occupancy Tax Ordinance, is also attached. Amendments to the Guidelines consist of the following language: "The City Council may suspend, for one year, the competitive application process dictated by these guidelines. If the competitive process is suspended for ane year, the competitive process must be used for the year following. If the City Council elects to suspend the competitive pracess, the City Administrator shall be authorized for that year to execute a grant agreement with one recipient who shall be selected nan- competitively, on the basis of interest and past performance. Conditions upon which a suspension of the competitive process may be based include but are not limited to: 1) a shortage of personnel and or staff time to conduct the competitive process; 2) insufficient response to prior year's notice of funding availability; 3) a /ac/( of qua/fi/ed app//cants; or 4] a significant reduction in Transient Occupancy Tax proceeds available far distribution. Suspension of the Competitive process for two or more consecutive years shall be accomplished by amending the Transient Occupancy Tax Ordinance." 102 Honorable Mayor and City Council January 23, 2006 Page 3 The Transient Occupancy Tax dictates a competitive grant process, to be administered consistent with Guidelines adopted by the City Council. As such, a permanent change to that process cannot be accomplished without an ordinance amendment. Guidelines and processes, however, may allow for departures from their requirements, for limited periods and specific reasons. It seems reasonable that such an approach can be used in the present instance, to give the council additional opportunity to evaluate the effectiveness of the new Visitor's Center and the desirability of dedicating TOT funds to that use. Consistent with the Council's discussion on October 10, 2005, the proposed amendment limits the suspension of the competitive process to one year. It also provides what may be the most compelling reasons for making such a decision. In addition, it authorizes the City Administrator to execute the fee-for-services agreement required by the guidelines, and acknowledges that if the Council wants to permanently change the way it disperses TOT grant funds, an amendment to the TOT is needed. In my October 10, 2005 report, I indicated that my office lacks the resources needed to administer a competitive grant process for 2006, due to the departure of the Administrative Analyst who managed this program. I also noted the limited response we have historically received to notices of funding availability. Of the four years we have conducted this program, in one year, the Chamber was the only qualified applicant. To suspend the competitive process for 2006, it is recommended that the City Council base its decision on findings that a shortage of persannel and or staff time to conduct the competitive process exists, as have insufficient response to prior year's notice of funding availability. FINANCIAL IN, PACT: Proceeds from the transient occupancy tax for 2005-06 are estimated at 200,000. Two ninths of that amount is $44,444. Awarding this amount to the Chamber, results in no greater, or lesser financial impact that would result from distribution of funds based on a competJJJve granJ process. JCB Attachment 103 COUNCIL BILL NO. RESOLUTION NO. A RESOLUTION REVISING GUIDELINES, PROCEDURES AND PROCESS FOR OBTAINING CITY TOURISM AND ECONOMIC DEVELOPMENT GRANT FUNDS PURSUANT TO ORDINANCE NO. 2057 (THE TRANSIENT OCCUPANCY TAX ORDINANCE). WHEREAS, the City established a transient occupancy tax by the passage of Ordinance No. 2057 (the Transient Occupancy Tax Ordinance); and WHEREAS, the Transient Occupancy Tax Ordinance was amended by Ordinance No. 2290 so 2/9 (22.22%) of anticipated transient occupancy tax funds are made available by the City for distribution through a competitive grant process to agencies who promote tourism and/or economic development among their major activities; and WHEREAS, on September 24, 2001, the City Council adopted Resolution No. 1651, which established policies and procedures gaverning the application and award process for tourism and economic development grants, pursuant to the transient occupancy tax ordinance; and WHEREAS, on October 13, 2003, the City Council adopted Resolution No. 1739, which revised guidelines, procedures and process for obtaining City tourism and economic development grant funds to simplify administration of and compliance with tourism and economic development grants; and WHEREAS, the Council finds it desirable to further revise the grant guidelines to allow it to suspend utilization of the competitive grant process, NOW, THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. The TOURISM AND ECONOMIC DEVELOPMENT GRANT GUIDELINES, PROCEDURES AND PROCESS, which is affixed hereto and incorporated herein as Attachment "A" is hereby adopted. 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 Al-rEST: Mary Tennant City Recorder City of Woodburn, Oregon Page 1 - Council Bill No. Resolution No. 104 ATTACHMENT CITY Of WOODBURN Page i _ of TOURISM AND ECONOMIC DEVELOPMENT GRANT GUIDELINES, PROCEDURES AND PROCESS INTRODUCTION: The Woodburn City Council appropriates two ninths (22.222%) of the anticipated Transient Occupancy Tax (TOT) monies for tourism and economic development. Those monies are distributed through a competitive grant process to agencies who have tourism promotion or economic development as a fundamental part of their mission, who will forward the City Council's purposes in creating and allocating grant funding, and who can demonstrate the ability to deliver projects that benefit the Woodburn economy. Projects that will be considered for funding must have a definable impact on the travel and tourism industry, or on diversifying and strengthening the local economy. The minimum amount for a single project shall be $5,000. WTEDG funds cannot represent more than 75 percent of a project's total cost. Funding will be provided, on a reimbursement basis, up to a not-to-exceed amount specified by contract. In the event that total revenues from the portion of TOT dedicated to tourism and economic development activities are not sufficient to reimburse the full cost of awarded grants, reimbursements shall be distributed in lesser amounts, in proportion to actual revenues received. GRANT PURPOSES: · Promote existing tourist attractions and events · Create a greater diversity of cultural events and activities that will attract tourists to the City Of Woodburn · Encourage the implementation of cooperative tourism development projects and activities · Promote diversification of the City's economic base · Promote projects and activities having the capacity to enhance long-term economic growth · Promote and assist existing small businesses · Provide technical and financial assistance for the expansion of existing businesses · Provide technical and financial assistance for the development of new businesses ELIGIBLE APPLICANTS: Non-profit organizations and governmental agencies may apply. Non-profit organizations must include tourism and/or economic development or marketing among their major activities. Applicants must have a Federal ID number, registered with the internal revenue service, to qualify for funding. The number must coincide with the applicant's organization name. 105 ATTACHMENT- page ~:_ of __.~._._ Applicants must be located with the city limits of the City Of Woodburn. Applicants must demonstrate a fiscal accountability system that insures the money will be spent in the manner indicated by the grant application. ELIGIBLE PROJECTS: Examples of projects that will be considered for funding include but are not limited to: · marketing efforts to attract tourism · development of tourism opportunities and attractions · projects and activities having the capacity to enhance long-term economic growth A matching formula of 1-3 is required (Applicant match must equal at least 25 percent of proposed project cost). Priority will be given to projects that reflect new and innovative ideas. Priority will also be given to tourism related projects that encourage prolonged stays, and to economic development-related projects that create employment opportunities with a minimum annual wage of $35,000. APPLICATION PROCESS: · Completed applications must be submitted on forms provided by the City Of Woodburn. Forms may be photocopied. · Five (5) copies of the completed application package must be submitted. · Applicants may be asked to provide additional information to the City. Applicants must be willing to negotiate the grant agreement so as to ensure the best use of these funds. · City staff will review and evaluate applications for eligibility of proposing organizations and activities. · A project review team will review qualifying applications. The project review team may seek input from project sponsors or applicants during the application evaluation process. · The project review team will make recommendations to the City Council. · The City Council will determine grant approvals, subject to execution of contracts with the successful applicants. APPLICATION INSTRUCTIONS: Please see the descriptions below of the information that must be submitted to constitute a competed application. 1. Applicant Information 106 ATTACUMENT ~ Page _-'5 - of . ko Bo Submitting institution - only one organization. Any other institutions involved in the project must be listed under collaborating or participating individuals or organizations. Applicant must provide a brief history of their organization including years of operation, office location, list of officers, mission statement and objectives, and past experience delivering projects similar to that being proposed. Type of Institution - refers to the legal status of the institution, i.e. local government agency, or non-profit organization. Authorized representative - the person within the submitting organization who is legally responsible for receiving grant funds. Include name, title, mailing address, phone, and fax. Project Director. The name, address, phone, fax and e-mail of the person designated to receive routine correspondence regarding the contents and status of the project. Proposed Time Frame of Project - Provide a project timeline, including key milestones to mark progress. Projects must be completed within one year of the execution of a grant contract. Project Objective - Explain what is intended to be achieved, and its significance, by carrying out the proposed project. This should describe the goals of the project, and not project activities. Project Description - Provide concrete details of the project background, methodology, and anticipated results. Include in that discussion the need for WTEDG assistance. Project Budget- Please prepare a detailed project budget. Indicate the total cost of the project, and the portion of the budget for which WTEDG funds are requested. Provide an estimate of all project revenue, broken down by earned income, grants and contributions, and in-kind services. Expenses must be segregated into the following cost categories: personnel, materials and services, and capital items, and broken down by line item (i.e., advertising, printing, etc.) Provide the total cost for each specific line item and specify the amount of support for each requested from WTEDG. Please provide documentation of all matching funds and in-kind contributions. Collaborating or Participating Organizations/individuals - Specify all individual or organizational partners involved in the planning or execution of the proposed project and summarize their involvement. EVALUATION CRITERIA: Proposed projects will be evaluated on the following criteria: · Organization and experience 107 · Technical approach · Timing of project delivery · Partnerships with business and other organizations · TTAC!-I, MENT ~, age__'~,_, of ~ Budget. There must be an adequate level of financial support (public and private) already committed to the project. The project's potential for long-term positive impacts on the local economy The project's potential for long-term sustainability The project's readiness to proceed CONTRACT REQUIREMENTS: Applicants approved for a grant will be sent a notice of grant award, and a copy of the City's standard contact language. Grantees will have 30 days to submit all required documentation. This will include: An executed contract, including a Grant Summary form. The grant summary will include a scope and description of the project, goals, objectives, and anticipated results, project timelines and milestones, project director and if, applicable, staff, and a detailed project budget. Proof of Insurance. Proof of insurance, as required pursuant to City standards must be submitted. Corporate/Certified Resolution. This is a document accepting grant funds and accompanying requirements and restrictions, and certifying who is empowered to execute, deliver, and sigh on behalf of the project. Non-Profit Status. Grant awardees must provide proof of non-profit status. Verification of Matching Funds. Grantees certify, or show proof that matching funds are/will be available. Statement of Assurances. A statement of assurance, executed by the authorized representative, indicating that the grantee agrees to abide by all applicable City Of Woodburn policies, procedures, and requirements. REPORTING REQUIREMENTS: Status Reports. The grantee will submit progress reports on a quarterly basis. Status reports will include a discussion of progress toward meeting goals, objectives, and milestones, and will provide quantitative documentation of the effectiveness of the project to that point in time. Status reports will also provide detail regarding project revenues and expenditures. The final report shall include information for the immediately preceding quarter and for the entire grant period. 108 ATTACHMENT Page_ ~_... of Financial Reports: Financial reports shall be provided quarterly, in conjunction with the status reports. All expenditures of the project must be outlined in the financial report. The grantee is required to submit documentation of all expenditures, such as invoices or cancelled checks. Cost reimbursements will be based upon financial report documentation, and will not be released until expenditures have been approved by City Staff. Audit: If grantee is subject to a federal or state single audit, it must have an audit of its accounts performed annually and a copy submitted to the City of Woodburn. If the grantee is not subject to a single audit, then at the City's sole discretion, grantee shall be subject to a project-specific audit of its accounts within ninety days of the completion of the Project, or unless otherwise required. An independent accounting firm, at the sole expense of the grantee, shall conduct such an audit. The cost of such an audit will be considered as a cash match, for the purposes of meeting match requirements. Suspension of Competitive Process: The City Council may suspend, for one year, the competitive application process dictated by these guidelines. If the competitive process is suspended for one year, the competitive process must be used for the year following. If the City Council elects to suspend the competitive process, the City Administrator shall be authorized for that year to execute a grant agreement with one recipient who shall be selected non-competitively, on the basis of interest and past performance. Conditions upon which a suspension of the competitive process may be based include but are not limited to: 1) a shortage of personnel and or staff time to conduct the competitive process; 2) insufficient response to pdor year's notice of funding availability; 3) a lack of qualified applicants; or 4) a significant reduction in Transient Occupancy Tax proceeds available for distribution. Suspension of the Competitive process for two or more consecutive years shall be accomplished by amending the Transient Occupancy Tax Ordinance. 109 ATTACHMENT October 10, 2005 TO: FROM: Honorable Mayor and City Council John C. Brown, City Administrato~ SUBJECT: 2006 Transient Occupancy Tax Grant Funds RECOMMENDATI~)N: Consider the Chamber of Commerce's request to dedicate 2006 Tourism and Economic Development Grant funds to the Woodburn Visitor's Center, and direct staff to prepare documents necessary to implement Council's decision. BACKGROUND: Pursuant to Ordinance 2290, adopted in June 2001, two-ninths (22.22%) of the City's transient occupancy tax (TOT) is earmarked for tourism and economic development via a grant program. These monies have been distributed pursuant to Council-approved grant guidelines, to local organizations who: promote tourism or economic development, can advance the City Council's purposes in creating and allocating grant funding, and can demonstrate the ability to deliver projects that benefit the Woodburn economy. Since 2002, a total of $184,558 has been awarded to three organizations: $164,058 to the Chamber of Commerce, $13,000 to the Cascade Scenic Railway, and $7,500 to the Woodburn Downtown Association. Awards were based on estimates; the amounts distributed were based on actual TOT funds received by the City and by amounts actually expended by grantees. The vast majority of these funds have been used by the Chamber of Cammerce to operate a visitor's center, to produce tourism brochures and documents, and to support the overhead costs associated with these activities. Grant administration has included staff time required to: · periodically update grant guidelines · develop and issue annual requests for proposals · coordinate the activities of proposal review panels · negotiate and prepare annual contracts · review grant reports Agenda Item Review: City Administrator City Attorne~V '1,,...,) Honorable Mayor and City Council October 6, 2005 Page 2 ATTACI-.I, MENT Page '.~"- of · review and authorize reimbursement requests; and · process requests for grant modifications. Of these activities, coordinating the activities of a grant review panel is particularly time consuming. This requires soliciting panel members, coordinating meeting times and locations, developing application review materials, facilitating review sessions, and documenting committee recommendations. It has been increasingly difficult to find panel members, and to coordinate meetings that they can all attend. The costs of grant administration have not been charged to TOT funds earmarked for tourism and economic development; the General Fund has absorbed them. DISCUSSION: In August 2005 the Chamber of Commerce, in conjunction with the Nodh Willamette Valley Tourism Alliance opened a Travel Information Plaza Visitor's Center at the Woodburn Company Stores. The Center served approximately 2,000 visitors and distributed approximately 7,500 pieces of information dudng its first month in operation, and appears thus far, by those measures, to be highly successful. The Chamber is seeking permanent sources of funding to operate the center, including dedication of the funds the City sets aside to promote toudsm and economic development. Attached is the Chamber's request for dedicated funding, including a proposed scope of services (Attachment 1). The Council considered dedicated funding for the Chamber when the TOT was increased in 2001, but decided instead to establish the grant program. Concerns existed that the funds would be used to supplement the cost of ongoing Chamber operations, rather than to enhance tourism and economic development activities in the community. The Council also wanted to retain the flexibility to fund the projects of other organizations that would advance the Councils tourism and economic development goals. Accordingly, Ordinance 2290 was written to require that the increased TOT funds be distributed via a grant program, pursuant to a fee-for-services contract, and administered consistent with guidelines approved by the City Council. The contract requirement was established to assure accountability. The Chamber's proposal is provided for your consideration. Mr. Nick Harville, Chamber Executive will be available at your October 10, 2005 meeting to 111 Honorable Mayor and City Council October 6, 2005 Page 3 ATTAC.~IM ENT t Page ~ of ,, cl discuss his request, and to answer any questions you may have. The following information and observations are provided for your further consideration. 88 percent of the TOT funds awarded since 2002 were granted to the Chamber of Commerce. Smaller organizations with less staff have had difficulty submitting qualified proposals, spending the funds that have been awarded to them, and meeting the accountability requirements of grant contracts. The Visitor's Center, at initiation, is surpassing goals for its use. The Center, however, has not been in operation long enough to establish a track record, and as such, a permanent dedication of TOT funds to this project is not advisable. It is also inconsistent with the requirements of Ordinance 2290, which require distribution of funds pursuant to a grant program. The Council could, if you find that funding the Visitor's Center is of benefit to the public, forego the competitive grant process for a one-year period and grant TOT funds only to the Chamber. This would allow the Center to establish a record of effectiveness, and justification for longer-term dedication of funds, and provide the Council with ample opportunity to consider changes to the TOT ordinance. As was previously indicated, soliciting and evaluating grant proposals is a time consuming effort. In the past, analysts in this department managed those tasks. Due to the recent departure of a management analyst, we will be hard pressed to fit these tasks into the department's workload. Foregoing the competitive grant process, and directing grant funds to the Chamber, at least for a one-year period, will relieve that immediate pressure on departmental resources. The Chamber proposal identifies a financial need of $53,000 and seeks funding equal to 2/gths of 2004-05 TOT receipts. 2004-05 receipts were $210,492. Two ninths (2/9ths) of that amounted to $46,776. Due to fluctuations TOT grants have been awarded on the basis of estimated proceeds rather than on previous years' receipts, and have been awarded as a not-to-exceed amount. This allows for reductions in the grant if proceeds fall short of estimates. It is recommended that any funding granted to the Chamber for 2006 continue to be conditioned in this way. As well, although there may be administrative cost savings associated with eliminating a fee-for services contract with a grant recipient, both Ordinance 2290 and the Council's desire for accountability require such an agreement. Rather than eliminate it, it is recommended that reporting requirements can be streamlined fo reduce both grantee and grantor compliance activities. Allowing flexibility in program budgeting can also reduce compliance activities. 112 Honorable Mayor and City Council October 6, 2005 Page 4 I ATTACH,MENT-~ Pege ~ of_~ ....... Finally, if your council finds that foregoing the competitive process to award 2006 TOT grant funds is beneficial to the community, grant guidelines will need to be amended for the grant period. Based on the result of your consideration, these changes can be made, and presented to your council at a subsequent meeting prior to the end of the calendar year. FINANCIAL IMPA(~T: Proceeds from the transient occupancy tax for 2005-06 are estimated at 200,000. Two ninths of that amount is $44,444. Awarding this amount to the Chamber, results in no greater, or lesser financial impact that would result from distribution of funds based on a competitive grant process. 113 - Woodburn Chamber ~Commel~e ATTACHMENT 1 ATTACHMENT Page ....~_._ of_ 2241 Country Club Road · EO. Box 194 · Woodburn, OR 97071 www.woodburnchamber, org John Brown City Administrator City of Woodbum 270 Montgomen/ Wobdburn, Dear John: August _'29, 2005 RE D CUt ADldlI~A1~'$ ~ TRANSIET OCCUPANCY'FAX/TOT GRaMNT FUNDS Attached is a request to the City of Woodbum for dedicating 'rOT Funds to the Woodbum Area Chamber of Commerce/Visitor Center and an outline of how those funds would b~ used. The Woodbum Area Chamber of Commerce has acted as thc Destination Marketing Organization (DMO) of thc ~&xxtbum Area for many year& In the past, we have provided a web site, relocation and visitor information, purchased advertising and marketed Woodbum and the area. Today, we have taken tourism and economic development to another levd. We have opened a new visitor center in partner with public and private entitle& Even before we conclude our first 30 days of operating this visitor center we have had over ~000 visitors usc thc center. This is providing us with information on where visitor arc coming from, what they are interested in and what they want to do. It al~o allows us to promote and market our area, downtown, public services and thc attractions in and around Woodburn. ~MI this allows us to create a strategic tourism plan for marketing and promotion of Woodbum and thc area. Thereby making it a logical decision to dedicate TOT funds to the Visitor Center through which all our tourism efforts will flow. This creates a constant and consistent central point through which to work and gather information tn make even better spending decisions. \%E have also worked hard to create thc North Willamette Valley Tourism Alliance which leverages our limited funds with those of other communities and organizations to help market and promote the area to targeted market~ Please consider this proposal carefully. The WACC will need to add a part-time or full time staff person in the near future to coordinate the visitor center, volunteers and event~ However, none of this expense was included in the proposed use of City funds at this time. Xt, t: thank you for thc City of ~,~bodbum's continued support :md cc~)pcration in our joint efforts to build wealth in our community. / Sincerely, / ' · ~1 NiclkJ larv,llc l':xccutive Direct, ir, \~h, )dburn .\ rca ( ;bomb er o f ( ;()mmcrce (503) 982-8221 * Fax (503) 982-841~1t[ E-maih welcome~woodburnchamber, org i ATTACI';IM ENT Page __~._. of __ u~ ' August 23, 2005 Mr. John Brown City AdminisWator City of Woodburn 270 Montgomery Woodbum, OR. 97O71 Dear John: As a long-tlme partner in marketing and promoting the cOmmunity with the City of Woodbum the Woodbum Area Chamber of Commerce has grown Woodbum's tourism development to a point where it needs to dramatically enhance its coorch'nation and strateg/c focus on prima~ markets to continue to serve the community and increase wealth within the community. The Chamber acts as the Destination Marketing Organization (DMO) for the community and with the new visitor center our role as DMO has gone to a new level. This correspondence outlines the complete scope of work we plan to implement, including objectives, procedures, identification of responsibilities and estimated costs. OBJECTIVE As DMO the Chamber has taken on operations of the first Travel Information Plaza being developed Oregon Travel Information CounciL The visitor center is the only one of its type that is inside one of Oregon's leading tourist destination. As of today we are avera$in$ 80 visitors per day and we have provided over 7500 pieces of information in our first three weeks of operation. As DMO one of our objectives is to coordinate all the marketing and presentations and promotional efforts so they are focused on the identified primary and secondary markets. As DMO another objective is to leverage Chamber and room occupancy tax funds with those of other orEanizatiorm and communities to further enhance our marketing and promotional efforts to extend our effectiveness. This leverages human and financial resources with others to accomplish more together than we can do alone. SCOPE OF SERVICES I. Procedures a. Coordinate planning and implementation of a tourism development strategy. Recommend steps required to successfully create a brand identity for Woodburn. Establish specifications for the bridge from the present marketing pieces to new promotional and marketing pieces using the new brand image. c. Establish specifications for the coordination of local tourist/visitor related events. This provides a central coordinating point. 115 John Brown Page 2 8/29/200S ATTA.~"IMENT i'~ Page _l .... of d. Establish a ~vork process with the North Willamette Valley Tourism Alliance to promote the larger region surroundin$ Woodburn to market and promote the area for the benefit of Woodbum and the region. c. Establish trackin$ mechanisms for economic impact of tourism on the area. Ttainina and Track, ina a. Work with the City of Woodbum, Marion County and State of Oregon staff on educational implementation to help the community and region ~ain a general understanding of the impact of tourism. b. Train hospitality and service employees for quality customer service. c. Work with local and regional entities to do tracking of visitor interests and needs. d. Train all volunteer staff for the Visitor Center for quality customer service. Visitor Center Ooeration a. Create marketing materials to promote the Visitor Center. b. Establish a central contact point for promoting local events to visitors. c. Provide information to visitors for resident relocation and business relocation. d. Provide representation for the community and regiou in state and federal tourism events and programs. c. Coordinate development objectives with the City of Woodburm Marketina and Promotion a. Implement a brand identification process. b. Create new marketin$ materials for the community. c. Identify strategic placement for marketing materials in identified primary and secoudaty markets. d. Implement a process of promoting to group tour operators. e. Coordinate regional marketing and promotion to leverage local marketing and promotion to increase effectiveness. Chamber Page 2 8/29/2005 f. Work with the regional group, NWVTA, to create other marketing pieces that enhance the visitor experience in the area, i.e. biking, hiking, camping, and shopping. This work would generate other marketing pieces such as biking maps that identify routes throughout the area. g. Identify and develop multiple marketing venues, print, voice media, and multimedia, to promote the community. h. Develop and create a media kit for film and video opportunities. 116 John Brown Page 3 8/29/2005 ATTACHMENT Page --~.-- of ~.~ THE RESPONSIBILITIES OF THE CITY OF WOODBURN This on-going project demands significant involvement by the Chamber of Commerce, Ultimate success is highly dependent on our mutual coordination and pannership efforts, To help achieve a smooth and successful implementation, it will be the City's respons~ility to provide the following: l,. The City of Woodbum dedicates funds provided by Tourism & Economic Development funds to the Visitor 2, The City of Woodbum permanently dedicates 2/9~ or 22,222% of anticipated transient occupancy tax funding to the Visitor Center and Tourism Development operated by the Chamber, 3, These funds will be provided to the Chamber of Commerce in quarterly payments for Visitor Center and tourism development projects, Funds will be expended for the budgeted projects submitted by the Chamber and approved by the City prior to the budget year, 4. Funds will be based on the prior year's revenue, 5. Up to 25% of the total amount of funds budgeted can be requested by the Chamber in advance if the funds are available, 6. The City of Woodburn and Woodbum Area Chamber of Commerce work in partnership to achieve mutually shared community development goals, BUDGET FOR 2006 · This budget is for a portion of the costs for operating the travel information center. The other portion is funded through the Chamber. · Printing is to help with the cost of printing a new community profile. The member directory will be separate. · Operations are for telephone and other operating expenses. It also includes doing FAM tours with volunteers. · Marketin~ is for developing new promotional pieces. It also includes events and trade shows the will be identified related to the primary and secondary target markets. · Promotion using the new marketin$ pieces we will promote Woodbum and the area to independent travelers, group tours from the primary and secondary markets. We will also you these funds to promote local events through a vadety of media outlets. We will leverage our promotion with others in a coop partnership whenever possible. · Other Services are for misc. expenses throughout the year. Equipment for the Visitor Center and other miscellaneous expenses. 117 ATTACHMENT Page _.~_ of _~-"~[-"~ John Brown Page 4 8/29/200S BENEFITS l. By having a central point of contact, thc Visitor Center, the City of Woodbum and the Chamber of Commerce have a more coordina~ process for promotin$ and marl~tin$ community events, and the community. 2. Dedicatin$ transient occupancy tax mon~ at the presented pcrcentase to this coordinated effort of tourism and economic development the CiW of Woodbum eliminates the cost of administerin$ thc annual grant process. 3. This would sa~/e staff time and operatin$ expenses for thc city while still accomplishin$ the objective of Ordinance #2290. CLOSING We appreciate the opportunit~ to serve as the DMO for Woodbum and the surrounding area. We feel this proposal is sound and a valid use of funds as s~t forth in Ordinance #2290. Tourism is economic development and it does build wealth in the communiW which helps build a stronger community for all of us. Sincerely,// Nick l-l~arville Executive Director, Woodburn Area Chamber of Commerce. 118 /~trcrl~or,ltet{ IFS~ 11D TO: FROM: SUBJECT: January 23, 2006 Honorable Mayor and City Council through City Administrator Naomi Zwerdling, Interim Community Development Director N'.7__. Appeal of Zoning Adjustment Case File No. 05-02 located at 120 Smith Drive. RECOMMENDATION' In regard to this proposal, the City Council has the following options: (1) Concur with the Community Development Director's decision of approval of Zoning Adjustment Case File No. 05-02. (2) Modify the Community Development Director's decision. It is recommended that the City Council instruct staff to prepare an ordinance to substantiate its decision. BACKGROUND: At the January 9, 2006 City Council Meeting, Daniel B. Atchison, Dave Emmenegger's attorney, requested that the record be left open for seven days to submit additional written evidence. The City Council granted the applicant's request subject to the extension of the 120 day Rule from January 27, 2006 to February 27, 2006. Daniel B. Atchison submitted additional written evidence on January 13, 2006, within the 7 day time period requirement for submittal of additional written evidence. The submitted written evidence is attached to this report. DISCUSSION: Daniel B. Atchison submitted written evidence regarding the 1) Clarification of the condition requiring replacement or removal of the applicant's driveway, and 2) Compliance with the 20 foot setback requirement for structures abutting a street. In regard to item #1, Daniel B. Atchison states the following: Agenda Item Review: City Administrat~ City Attorney Financ ~?/~/~ 119 Honorable Mayor and City Council January 23, 2006 Page 2 "Pursuant to the city council's direction, the applicant has discussed the repair of the 24 inch cutout in the driveway on the subject property with the Public Works, and is in the process of filling the cutout with crushed gravel to eliminate any safety hazards. This is a temporary remedy, as the driveway will be repaved during the construction of the proposed addition, pending the city council's approval of this application. As stated during the January 9, 2006 public hearing, the applicant's objection to this condition of approval was merely to clarify that the objection did not require that the driveway be removed." Condition of approval #6 of Zoning Adjustment 05-02, which states that the existing driveway approach to the site from Workman Drive shall either be removed or completed/repaired, complying with city standards, prior to building permits being issued, is necessary to ensure compliance with Council Ordinance No. 1917. Council Ordinance No. 1917 requires the owner of land adjoining a city street to maintain in good repair the driveway approach. In regard to item #2, the applicant states the following: "The existing dwelling on the subject property is a nonconforming use, which, like most other dwellings in the neighborhood, was built prior to when the 20 foot setback requirement was enacted by the city. As stated in the WDO, and consistent with state land use law, an attached accessory structure, such as proposed by the property owner, is considered an addition to the existing structure on the property, not a separate structure. The same zoning requirements that apply to the existing structure apply to the addition. In this case, the 20 foot setback requirement does not apply to the existing structure, because, as will be shown below, the existing structure was built before the WDO 20 foot setback requirement was enacted. As a result, the setback requirement does not apply to the addition." The applicant further argues that 1) The existing structure is a legal nonconforming use, 2) The proposed addition is subject to the same standard as the existing use, and 3) The proposed addition will not make the use more nonconforming. In regard to the existing structure being a legal nonconforming use, the applicant states that the applicant's dwelling was established in 1968/69. A City of Woodburn Building Permit Application was issued for a 2,100 square foot residential dwelling on the 120 Smith Drive site on April 1, 1968. Staff could not 120 Honorable Mayor and City Council January 23, 2006 Page 3 find a site plan or certificate of occupancy. The applicant states that at the time the dwelling was constructed, City of Woodburn Ordinance No. 999 required only a 10 foot setback for a side yard for corner lots. The applicant refers to Section 6.08 on page 10 of Ordinance No. 999 which states "...On corner lots or building sites, unless elsewhere herein or by other ordinances otherwise provided, no main building shall be closer than 10 feet to the exterior side line..." Staff believes that this section of Ordinance No. 999 is not clear. Ordinance No. 999 does not define the "exterior" side line. It is not clear if a greater than 10 foot setback could have been imposed as part of the Subdivision Decision. The Subdivision Plat (Subdivision of Block 8, Smith's Addition to the City of Woodburn, Marion County, Oregon) that was recorded July 14, 1966 at Marion County to create lot #8 (120 Smith Drive site) shows a 20 foot building setback line on the south (adjacent to Workman Drive) and west (adjacent to Smith Drive) sides of the subject property. This recorded plat was signed by the Chairman of the Woodburn Planning Commission, the City of Woodburn Mayor, the Marion County Surveyor, the Marion County Assessor, Madon County Commissioners, the Marion County Recorder and the Property Owner. Staff at the Madon County Surveyor's Office stated that it was common practice when the subdivision plat for the subject site was recorded, to place a required building setback line on recorded subdivision plats. The existing dwelling on the subject site does not comply with the 20 foot building setback line shown on the recorded subdivision plat. It appears the existing dwelling on the subject property may not be a legal nonconforming use that is not subject to a 20 foot setback requirement on Workman Drive. The applicant included a copy of a portion of the recorded subdivision plat discussed above in the zoning adjustment application packet. The applicant stated on page 4 of the narrative submitted with the zoning adjustment application "...The double frontage of the subject property imposes an additional burden of two required front yard setbacks along both streets. See Exhibit H, which shows the subject property with a 20-foot setback along both the front (west) and side (south) property lines. If this were not a corner lot, the side (southeast) property line would be considered an interior side yard, and only a five-foot setback would be required..." The applicant used the 20 foot double frontage setback requirement throughout the narrative submitted with the zoning adjustment application to support their argument that the zoning adjustment to the rear yard setback should be approved because the 20 foot double frontage requirement reduces the buildable area of the subject lot. The applicant did not discuss the nonconforming side yard setback adjacent to Workman Drive in the narrative submitted with the zoning adjustment application. 121 Honorable Mayor and City Council January 23, 2006 Page 4 Even if the applicant proved that the existing structure is a legal nonconforming use, Section 1.104.04.A of the WDO states "Any expansion or addition to buildings or structures with nonconforming height, setback, density or lot coverage shall not make the development more nonconforming.' In addition, Section 1.101.04 of the WDO states "Developments, including subdivisions, partitions, planned unit developments, zone changes, conditional uses, variances, site development review, or other development applications for which approvals were granted before the effective date of the WDO, may occur pursuant to such approvals; EXCEPT that all subsequent modifications to development approvals shall comply with the WDO." "Development" is defined in Section 1.102 of the WDO as "A building or grading operation, making a material change in the use or appearance of a structure or land, dividing land into two or more parcels, partitioning or subdividing of land as provided in ORS Chapter 92 or the creation or termination of an access right." The applicant is proposing to expand and change the appearance of the existing dwelling on the subject site that does not meet the 20 foot building setback shown on the recorded subdivision plat or the 20 foot minimum setback abutting a street or front property line requirement in Section 2.102.06.C.1 .a.1 of the W DO which will make the development more nonconforming. If the applicant proposes a garage door on the proposed addition, which will change the entry/exit use of the existing garage making the development more nonconforming, then the current driveway on Workman Drive which is currently between 13 feet and 15 feet in depth as shown on the applicant's submitted site plan date stamped August 16, 2005 does not have the 20 foot minimum depth necessary to keep parked vehicles from overhanging into the Workman Drive right of way. Section 3.104.05.B.2 of the WDO states the following: "Paved Parking Pad at a Garage Entrance (or carport for a manufactured home). There shall be an improved parking space, or pad, abutting the attached or detached garage doorway for each opposing parking space within the garage. The exterior pad area for each vehicle shall have the minimum dimensions of 10 feet wide by 20 feet long." The applicant states the following in the submitted narrative: "Pursuant to the WDO, the addition is considered a portion of the dwelling and subject to the same requirements as the dwelling. WDO 2.201.03.E states, Covered or enclosed accessory structures which are attached to a primary building shall be considered as a portion of the primary building and subject to the same zoning requirements as the primary building." 122 Honorable Mayor and City Council January 23, 2006 Page 5 e The above stated requirement in the WDO is a standard for development under the current WDO and not a former code or a nonconforming use. Condition of approval #1 of Zoning Adjustment 05-02 is necessary to ensure that the proposed garage expansion will comply with the minimum 20 foot setback from the property line adjacent to Workman Drive per Section 2.102.06.C.l.a.1 of the WDO. Variance approval (Type III Decision) is required to vary the minimum setback from the property line abutting a street (Workman Drive) and the proposed structure from 20 feet to 14.75 feet. A variance application and fee would be required to initiate the variance process. Section 4.101.06.C of the WDO requires a public hearing process at the Planning Commission for a Type III Decision. FINANCIAL IMPACT: There is no financial impact associated with the recommended action. Attachments: Exhibit A: Submittal by Daniel B. Atchison date stamped January 13, 2006. Exhibit B: Recorded Subdivision Plat for the Subject Property 123 Wallace W. Lien Daniel B. Atchison Alexander C. Bcxat Brian J. Henry w. Ll~n~ P.C. 503-585-0~n~ WALLACE W. I,.II~N o Exhibit "A" JAN I 3.2008 WOODBURN COI~;1MUNITY DEVELOP~v!ENT DEPT. C..nntncf by e..mml est dufchi$onC'~lienlaw, corn January 13, 2006 Ms. Rreah Pike-galas Associate Plmmcr City of Woodbum 270 Montgomery gtre=t Woodburn, OR. 97071 By fax ia: !-503-9824244 Re: Emmeacttger- Zoning Adjustment Cast No, 05-0?, Enclosed please lind our client's Memorandum of Support for thc abovc-rcfcrcnced application. Please forward this memorandum to thc city council lbr their consideration. Thank you for your assistance. ' It' you have any questions regarding this matter, please l~e] bee to contact mc at your convenience. Yours truly, WALLACE W. LIEN, P,C. By: Daniel B. Atchison DBA:sdf Eric: Memorandum or'Support cc: Dave Emmenegger (w/eric) 775 32~ Place NF, Svilu A · Salem, OR 97303-1674 503-':,85-0105 ~x*.307 office * 503-585-01 Cfi fax Web .~lt~. at hlto'~r'~4v lienlow.curn ..... ~ w. Lien, P.C. 503-585-0106 P.02 BEFORE TIlE CITY COUNCIl, FOR 'L'I. IE CITY OF WOODBI IRN In thc Matter of the Application of: ) ) Case No. 05-02 DAVE EMMENEGGER ) ) For a Rear Yard Setback Zoning Adjustment ) For Property Located at 120 Smith Drive ) MEMORANDUM OF SUPPORT This memorandum is submitted in support of tho application of Dave Emmenegger Ibr a zone adjustment in Case No. 05-02. This memorandun~ addresses the two issues appealed from the planning department approval of the application; 1) Clarification of the condition requiring replacement or removal of the applicant's driveway, and; 2) Compliance with the 20 tbot setback requirement R~r structures abutting a street. A. Driveway C31toug, Pursuant to the city council's direction, the applicant has discussed the repair of the 24 inch cutout in the driveway on the subject property with Public Works, and is in the process of filling the cutout with crushed gravel to eliminate any satEty hazards. This is a tcml'x)rary remedy, aa the driveway will be repaved during thc construction of the proposed addition, pending the city council's approval of this application. As stated during the January 9, 2006: public hearing, the applicant's objection to this condition o1' approval was merely to clarify that the objection did not requir~ that thc driveway be removed. B. 20 Foot Seth_ack Comnliang~, The existing dwelling on the subject property is a nonconforming use. which, like most other dwellings in the neighborhood, was built prior to when thc 20 foot setback requirement was enacted Page I - ,~,lemorandurn ¢~'Support (k.'mmene,t~er) 125 [ by thc city. As stated in the WI)O, and consistent with qatc land use law, an attached accessory structure, such as proposed by the property owner, is considered an addition to thc existing structure on the property., not a separate structure. The same zonin$ requirements that apl~ly to thc existing structure apply to the addition. In this case, thc 20 foot setback requirement does not apply to the existing structure, because, as wilt be shown below, the existing structure was built before the WI-lO 20 setback requirement was enacted. As a resulT, the setback requirement do~s not apply to the addition. 1. The Existing Structurc is a Lcgal Nonconferming Use. A "nonconforming use" is defined by the WDO, section i. 102, as: "Iai use which met all applicable use standards imposed by applicable City, or county. zoning ordinance provisions when it was establisheck but which does not comply with the use standards of the WIX") solely because of thc ',utoption of or amendment el'the WDO, or bccausc annexation to thc City. resulted in thc application of different use standards to the subject property." In this case, the applicant's dwelling was established in 1968/1969. ,gee, Exhibit 1, Property, Prolile. Thc dwelling lies on a comer lot, thc front of the dwelling abutting Smith Drive and side (ffthe dwelling (where the proposed addition will be constructed') abutting Workman Drive. At the time the dwelling was constructed City of Woodbum Ordinance No. 999 required truly a I 0 Ibm setback fi,r a side yard lbr comer lots.I ,gee, Exhibit 2 - Ordinance No. 909, page 10 el'the exhibit. Section 6.08 o1' the ,refinance .slates, in relevant part: "On comer lots or huildino .qites. unless elsewhere herein or bv other ordinances otherwise provided, no main building shall be closer thtm ten [bet'to thc exterior side ~ At the time el'this writing, the applicant and city planning slaffhaw: not determined wilco the 20 toot setback requirement wa.q 'added to the city's zoning requirements. However, staff has determined that Ordinance 999 was in effect when the applicant's residence was constructed. Page 2 - .,lffemorat~¢htm of Support ('Etnmenegger) 126 linc." Thc existing dwelling was built in cc,mpliancc with thc city's applicable use standards when it was constructed. Themlbre, the existing dwelling on the subject property is a nonconforming usc not subject to thc 20 lbot setback requixcmcnt. 2. The l'ropos~d Additioa is Subject to the Same Standard as the Existing The proposed addition to the garage will bc attached to the dwelling and will employ matching siding and dcsign elements aa the existing dwelling. Pursuant tt) the WDO, thc addition is considered a portion of' the dwelling and subject to the same rcquiremcnt~ as thc dwelling. WDO 2.201.03.E states, "Covered or enclcmed access~ry structures which arc attached to a primary building shall he considered as a portion o./'the pri~nary building and subject to the same. zoning requirements ~x~' the primary building." (Emphasis 'added). In this ca~c. thc "primary building," the dwellin$, is not subject t~) thc 20 foot setback requirement, because it is a n~mconlbrming use. Pursuant to 2.20 [.03.E, thc addition, as a portion ot~the dwelling, and subject to thc "same zoning requirements~ is also not subject to the setback rule. In this zoaing adjustmcm application, the applicant sought an ',uljta,~tmcnt to the 24 foot rear yard setback. The additit)n requires an adjustment to thc rear y~d sctback because thc existing dwelling complies with the city's current rear yard setback rcquircmcm and, thus, is m)t a rtoacortt'orming use i.n regards t() the rear yard setback. However. in thc case of the setback abutting the street, no adjustment or variance is required because the use is a noncont'~)rming usc. 3. The Proposed Addition Will INot Make the Use More Noneonforminf~. WDO 1. ! 04.04.A, pertaining to n(mconl'orming uses, stales that, "iai ny expansion or additiot~ to buildings or structures with none(rethinking height, setback, density or lot cove,'age shall not make l'a)4e ~ - Mem.randum t~'.guppart tEmmcnegger) 127 ~n-z~-u~ u~:uu~ wallace ~. Llan, P.C. 503-585-0106 the development more mmconfi)rming." In this instance, thc cuncnt requirement ia £br a 20 tbol setback fi~r any structure abutting a street. Thc dwelling in this case lica approximately 14.75 fi:ct i?om the city right-of-way. The addition will parallel the c×isting dwelling and will continue to bc 14.75 l~et fi-om the right-of-way. Thc addition, a~ proposed, will not encroach anymore into the setback than the existing dwelling and will not make the development any mm'e noncon[brming. This application does not seek to ~xpand or intcnail~ the ~xisting u.~ on thc subject property. The addition match appearance and design element of the existing structure and w~il not encroach any furthe~ Lnto the setback than the existing use. The I~t that the WDO expressly mentions the "expansion or addition" to building~ with aoncorfforming setbacks indicates the city. contemplated additions to nonconfi~rming rases and intended to allow them, subject to regulation. In this ca.ne, the regulation states the addition shall not make the development "more nonconfi~rming." If the city had intended the WDO to require that additions to noncon[bmfing uses comply with new, mom onerous, zoning requkemem$, it would have been easy for the city to have simply staled so in the W'DO, Instead the city stated that additions m structures with a mmconforming setback "shall not make the development more nonconforming." In this case. thc applicant has complied with the requirements of the WDO and the addition will maintain the sclback that currently exists. 4. Conclusion The WDO provides that an aaachcd addition to an existing building is to be considered a portion of the primary building and sub. leer to thc same zoning requirements as the primary building. 'l'he existing building is a legal nonconlBrming use which is not subject to the 20 toot setback requirement. The addition, as a portion o1' that existing building is similarly not subject to that Page 4 -/~femt~randum ql'$upport (Emmcn~ggerl 128 requirement. The addititm will mainutin thc existing sctback distance and will not make th~: structure any morc nonconforming than it currently is. On behalf of the property owner, I urge the city, council to approve the application and remove condition no. 1 relating to the 20 foot setback. DATED this 13's day of January, 2006, at Salem, Marion Counw., Oregon. Daniel B. Atchison, OSB No, 04042 of Wallace W. Lien, P.C. Attorneys lbr Applicant 1' t.~u § - Mem~rundum t,t'.~upport fEmmenegger} 129 FASTWcb Pate 1 oi'l Woodl~ OR ~7071 Pro, my ~,rm.tkm R106247 05.1W.18[~; 5.-1W-18-NW-~ 0103.0t 9q. Feet # of unl~ COMPOSITION S~IN~E; GONGRE'T~ $96.08 $137.250.00 Conv~na~nal 0W0111998 Znd MtO. Prior ~ Ami. S97,000.00 Pdor sam Dr, 0~21t19~$ Prior ~ No. 1106-,309 I,flot Do~ TYI~ Warranty lT Imp VlllUe S0~,080.00 ~vemption L ~ V~ue ${58,27Q.00 T~x Ye~'IAre~ 2005/103030~C) Totll Vllu~ S154,35C).00 TIx VIILm $154,$~0.00 ax J~no.nt S2,780,44 In~v~l_ .. 62% Information co~'~Ted from various $ourcem and Is deemed reliable but ~3¥guaranteed, Exhibit p,~c_L.o~_/_ https://fwprodwcb l .firstam.com/FastWeb/FASTOrdcr/PropertyLookUp.asp?ID=O&Stat¢=... 1II 3/2006 130 'N Itzhibit pagcJ_of_~ 131 Wm llillll ~immmmmlml ~md~lmlm~m~ ill MNir N # mlmm m ~mi,-m--. [zhibit 132 .lan~ 13-06 Exhibit 133 m m _"mmmm[l# t. mm ~ m #mm 'dm ~ m dmtilm[k m~m,m~'i ~tm~--~ ~--~ ~ m mm m thin t~mn mmm (dmdmmmm 134 ~allaCa H. Llen~ P.C. 503-585-0106 ~]m lM4mM~lall or tm m mm~ Ezhibit 135 m ~lm m Mmlm#~ %13. Mm ~m4mli ~ mai m~d~e~ '1' Exhibit 136 ii 137 (f) ~ mr ~g,-£,m' n, md.bqmmdmj, l..'mf :i.immm. pm~ ~ b ~,d $mr m ~m mn idm.J al,MM, es rtd.Tguet .... 138 jan-.L~..t-u~ u4: .LJ.t' m,~4qrqmd, e~'~u. 4ud,MmJe ~e"4ms. :. · 3fL m Iii, di~J .-.. sm, t~,t mnmutmir ~'" mpg,m~,,._ _. .... .._ hn mmlm~ fmml nmm Immmm N ?,SIIO 8,piqqt',ra~, m m []bSB~m, ~ imm2 S, Jmn f~e ~ ~ bi W m m~ ~ e.h,~.,-,,~, ~ u' m~t]ax, x~m:lmumNgfs mm. ~ , f~;,- .,,* ,..,, ~, ~-~'"3 ,,- .,-,3,,q ii?...' .d Exhibit 139 immlm · ,~'~ mi ~m fWm,m ~mm'mm m mmm ~ ~mm, gm m ~ Elbibit 140 Cs) zl~ ~me ~ t~ m'~ JNf, buM,d.'~ Cd) ~afu,um,r re,nb, kr.d~ ,eGo, ,mm,-,-,, smu.t,,um,, (m) Cb,a. dm; . · 141 --4-i-o ~--<0 oo:~ '1 ' J llE J January 17, 2006 TO: FROM: SUBJECT: Mayor and City Council through City Administrator Randy Scott, Senior Engineer Technician, Through the Public Works~ Director Easement Extinguishment and Modification (relocation) RECOMMENDATION: It is being recommended that the City Council approve the Extinguishment Agreement of a Public Storm Sewer Easement as outlined in Attachment "A' and the Modification Agreement of an existing Public Access Easement as outlined in Attachment "B" and authorize the City Administrator to sign said agreements. BACKGROUND: Both easements have been conveyed to the city in conjunction with the platted Subdivision, Boones Crossing Phase 1. The property owner Premier Development, LLC. has made the request for each action. Letter of request for both actions are included as Attachment "D" and Attachment "E". Since the initial request, Premier Development LLC has sold lot 7 to James and Tina Hudson. Lot 7 is subject to the easement modification agreement and a signature line for the Hudson's has been added. Included as attachment "C" is a location map. The Storm Drain Easement requested to be extinguished on Lot 15 and 10t 16 is not needed by the city. The easement was conveyed to the city with the platting of Boones Crossing Phase 1 Subdivision. The plat was approved before construction of the public infrastructure serving the subdivision. The storm sewer line originally designed to utilize the subject easement was redesigned and relocated in the public right of way eliminating the need for the easement. Agenda Item Review: City Administrato~ 143 city Attorney [~P/~'~ Finance ,~,~ Mayor and City Council January 17, 2006 Page 2 The Public Access Easement requested to be modified across lots 6, 7 and 8 is for maintenance access to a storm sewer system constructed along the rear boundary line. The width of the access does not change with this modification, city accessibility is not impacted, and therefore staff is recommending that the request be approved. An aggregate surface for maintenance vehicles was required and constructed in the access easement in conjunction with the public infrastructure improvements; the property owner shall reconstruct the same in the modified easement area. In the past, staff has followed the formal vacation process for modification of an existing easement. The recommended approval process by the council of eliminating and/or relocating an existing easement by agreement has been reviewed and is acceptable to the City Attorney. The modified process is less cumbersome to staff and less expensive to the property owner. City Attorney has determined that the documents meet the legal requirements. Public works staff finds the legal descriptions to be accurate and that the access needs for future maintenance purposes will not be compromised by the property owner request. Therefore, staff is recommending approval. FINANCIAL IMPACT: There is no financial impact with the recommended action Attachments: Included as Attachment "A" is the Storm Drain Extinguishment Agreement Included as Attachment "B" is the Public Access Modification Agreement Included as Attachment "C" is the location map Included as Attachment "D" is the Extinguishment request Included as Attachment "E" is the Modification request Included as Attachmenf "F" is the letfer responding to fhe City's revisions 144 ATTACHMENT "A" EXTINGUISHMENT OF EASEMENT This Agreement is ~ntemd into this .. day of ,2006 bev0men Premier Development, LLC, a limited liability company, and the City of Woodbum. RECITALS: A. Pxemier Development, LLC is the declarant in a PUD and ~ubdivision known as Booncs Crossing Subdivision Plmsc I rccordcd in Marion Cot[nV at Reel 2504. Page 444 on July 11, 2005. B. The plat of Boones Crossing Subdivision referred to above contains an easement referenced by dash lines cross lots 14 and 15. The legal description for slid easement is scl forth in Exhibit "A." It was originally intended to Frovide the City of Woodbum ec.c, ess to a manhole for its storm drain systcm. C. The parties hereto agrcc that said easement is incorrcctly placcd. It should not have been referenced on the plat. The City of Woodbm has no need for such e~sement. AGREEMENT: NOW, THEREFORE, the parties hereto agree that the easement shown on the plat on Lots i 4 and 15, and more particularly on Exhibit "A," is extinguished and shall be of no tkmher force and cffecL PREIV~R DEVELOPMENT, LLC CITY OF WOODBURN By By Loft Zumwalt, M~mber its City Administrator Pegc i- Exflnsui~hn~r~ of~ 145 Exiu'bit 'A' ATTACHMENT "A" Being a strip of land, 6.00 fee~ wide, sit,,,__~-I co Lo~ 14 of~ Hat of ~ 1'. md ~t 1~8 ~ ~ SW ~ of Se~ 18, To~ 5 ~, ~~ M~ ~ ~ ~ of W~ M~on ~', ~o~ ~d ~ morc 'Fao ~stcrb' 6.00 feet of Lot 14 ofs~tid Hat., cxccpti~ ~ that po~on l)~g notlhedy of & ~ dr~wn 16.00 fee{ ~outix=rly of ~tnd pa~ll¢l v~tJ~ the northerly boundar)' oft, aid Pla. ~ · strip of trod, 10.00 f~:{ wide, sitmted on Lo~ 15 of the p~ of'q3oones ~ pl~se 1', ssid p~ lying in ~lz SW '~ of So=tton IlL To, vns~p $ ,%u~ P, an~ 1 Wc~, WHlam~e ~~ in tt~ City of W~ M~ ~', ~ ~d ~p m~ ~my d~ ~ ~Ho~: TI~ ~ 10.O0 foot of Lot 15 of s~ld PI~ ~x~ ~ th~ portion tying tlot. th~ olfs~ Jhl~ dntw~t l~.O0 feet :moutJ~ of and psrallel with ~ aorli3~y bo~ of~d Plat. 146 ATTACHMENT "B" - MODIFICATION OF EASEM~'TS Premier Development, LLC, an Oregon limited Woodbum have entered into this agreement this ~ modifi] the location of easements describe~l herein. liability company, and the City of day of ,2006. to RECITALS: A. Premier Development, LLC is the owner and Declarant of land lcnown as Boones Crossing Phase I. The plat of which is recorded in Marion County at Reel 2504, Page 444 on July 11, 2005. James and Tina Hudson purchased and are the current owners of Lot 7. B. The plat of Boones Crossing Phase I contains easements across Lots 6, 7 and 8 for access by the City of Woodbum for undcrgrt)und utilities. However, the location of the eazsements as noted on the plat are not plseed in the proper location or size intend~ by either the Declarant or the City of Woodbum. Legal descriptions and diagrams showing the location of the easements as shown on the plat are anaehed as follows: Exhibit A-I: Exhibit A-2: Exhibit A-3: Exhibit A4: Exhibit A-5: Exhibit A4: Map of existing easement on Lot 6 Legal description of easement on Lot 6 Legal description of existing easement on Lot 7 Map of existing easement on Lot 7 Iazgal description of exis'dng easement on Lot 8 Map of existing easement on Lot 8 B. Both the City of Woodbum and Premie~ Development, LLC desire to extinguish the existing easements and move the e~sements to a new location on the plat. James and Tina Hudson desire to modify thc easem~t shown on Lot 7. Legsl descriptions and maps showing the new loceliom are att~hed as follows: Exhibit B- 1: Exhibit B-2: Exhibit B-3: Exhibit B4: Exhibit B-5: Exhibit B-6: Legal description for new easement on Lot 6 Map showing new easement on Lot 6 Legal descxiption for new e~sement on LO~ 7 Map showing new easement on Lot 7 Legal description for new casement on Lot 8 My showing new easement on Lot 8 AGREEMENT: NOW, THEREFORE, in consideration of the mutual promises included herein. Dccl~raflt, Hudsons and the City of Woodbum agrcc as follows: AFl'ER RECORDING RETURN TO: Pr~--n'fier Development, LLC P. O. Box 43 McMinnville OR 97128 PI~ i- MODIIriCATION OF EAISEMENT~ ATTACHMENT "B" 1. The easements described in Exhibits A-2 through A-6 ate extinguished and shall be of no further force and effect. 2. The City of Woodbum shall be granted by Premier Development, LLC a non- exclusive easement for ingress and egmsa to servic~ underground utilities located on the easements described in Exhibits B-I through B-6. 3. The easements created herein am appurtenant to the real property and shall mn with the land and shall be binding on the succe~,~ra and assigns of Premier Development, LLC. 4. In the event the City of Woodburn utilizes the easements described heroin, it shall indemnify and hold harmless the owners of the servient estates from any injury or property damage caus~ by the City's use of the ea~ment, and shall restore the property to the condition it was in prior to the City's we of the easement. IT IS SO AOREED: PREMIER DEVELOPMENT, LLC an Oregon limited liability company CITY OF WOODBURN, a municipal corporation By By Loft Zumwalt, Member Its City Adminislxator HUDSONS James Hudaon Tim Hudson STATE OF OREOON ) )~s. County of Yarahill. ) Personally appeared before me this ~ day of ,2006 the above-named Lori Zumwalt, Member, on bekmlf of Premier D~v¢lol~nent, LLC, and acknowledged the foregoing instrument to be her volunta~ act and deed. Notary Public for Oregon My commission expires: Pa~¢ 2- MODIFICATION OF EASEMEN'rst Mmlm,i & Hill ATTACHMENT "B" STATE OF OREGON ) County of Marioa. ) Personally appeared before me this ~ day of , 2006 the above-named ., as City Administrator, on behalf of the Ci~,. of Woodburn and acknowledged the foregoing instrument to be its voluntary act and deed. Notary Public for Oregon My commission expires: STATE OF OREGON ) )ss. Count)' of Marion. ) Personally appeared before me this ~ day of ,2006 the above-named James Hudson and Tina Hudson, husband and wife and acknowledged the foregoing instrument tO be their voluntary act and deed. Notary Public for Oregon My commission expires: Page 3- MODIFICATION Mm~inis & Hill _ ATTACHMENT "B" - 8 [XHIBIT ^-~ [osement Exiqibit 150 AT'I'ACHMENT "B" Exhibit Being n portion of Lot 6 of the Plat of "Booocs Crossing phase I". said plat lying in thc SW 'A of Section 15, Township 5 South, Range I West, Willamette Meridian, in the City of' Woodbum, Marion County, Oregon, said portion more particularly described as follows: Thc wcs-tefly 7.:50 feet of said Lot 6 adjoining thc cast~ly line of'Lot 8 of'said plat. extending thc easterly linc of said .~rip northerly to the plat boundary and southcrly to thc northea~erly line of l,ot 7. ATTACHMENT "B" Exhibit A- 3 Being a portion of Lot 7 ofthe P~ of"Boones Crosstng phase I", said plat lying in the SW tA of Seoion 18, Township 5 South, Range I West, Willamette Meridian, in thc City of Woodbum, Marion County, Oregon. ssid porlion more particularly dcscribed as follows: Beginning at the most southerly comcr of Lot 6 of said plat. thence along the northwes~crly right-of-way linc of Country Lane. South 25°28'44'' West, 15.00 fcet: Thence leaving said right-of-way line, North 64"31' 16" Wcst, 71.56 feet: Thence North 18'37'40" West, 6.77 feet to the southeasterly line of Lot Il: Thence along said southeasterly line, North 28'58'44" East, 10.16 feet la tb~ comer common to Lots 6. 7. and 8 of said Plat: The, ace along the southwe, stedy lir~ of said Lot 6. South 64'3 !' 16" ~ 75.66 feet lo thc Point of Beginning. 152 ATTACHMENT "B" - LLJ 5 I ,Z 6.77 PR~ESSIONAL LAND ~R~YOE R~N[WAL OA~: 01-01-07 W EXHIBIT ~-4 Eosernent E_xh;bit Prepored by OooeLine Surveying, LLC 315 Hilllop Dr. Newberg, Or 97152 Scr]le' l""50~_ole____~ 10/.51/05 1.1" Drown.~. jChecked Jr)h' 1 I 4.$ 153 ATTACHMENT "B" Exhibit Being a portion Lot 8 ofthc Plat of"Boones Crossing phase !". said plat lying in the SW V, of Scction 18. Township 5 South, P,~nge I WesL Willamette Mcridian. in the City of Woodbum.' Marion County, Oregon. said portion more particularly described a.,; follows: The easterly 7.50 feet of said Lot 8 adjoining thc westerly linc of Lot 6 of said plat. extcnding the westerly line of said strip northerly to the plat boundary and southerly to the northwesterly iin;: of Lot 7. 154 LLJ I g 8 7 PRorrsslo~^~ / LAND SUR~YOR / -' OREGON MICHAEL O. R~NNJ~ n~EWAL DARE: 01-01-O~ EXHIBIT Eosemen! Prepared by BaseL/ne Survoyin9. LLC 31,5 Hilltop Dr. Newber9. Or 97132 S~,o,,:,,"-so;_~'o,~: ,o/~, Drown' md, Jchec~cd' ~v~ 155 ATTACHMENT "B" Exhibit Being a tract of land for easement purpo.~-s over and across a portio, of Lot 6 of the Plat of"Boones Crossing phase !", said plat lying in the SW ¼ of Section Ill. Township 5 South, Range I West, Willamette Meridian, in the City of Woodburn. Marion County, Oregon. said easement more particularly described ~s follow,s: Beginning at the most southerly comcr of Lot 6 of said plat, thence along the linc common to Lots 6 and 7. North 64'*3 !' ! 6" West, 75.66 feet to the comer common to Lots 6. 7, tnd g; Thence along thc linc common to Lots 6 and 8, North i 8~37'40'' We.% 34.81 feet to the most northerly corner common to Lots 6 and 8; Th<race along the northwesterly liuc of Lo~ 6, North 25~g'02" East. 10.78 feet: Thcncc parallel with and 7.50 feet northeasterly of, by perpendicular measure, the linc common to Lots 6 and 8, South 18"37'40" Fast, 33.11 feet; Thence parallel with end 12.00 feet northerly of, by perpendicular measure, the line common to Lots 6 and 7, South 64°3] '[6" Ea~ 76.85 feet to the northeasterly right-of- way line of Cotmtry Lane; Thence along raid right-of-way line, South 25~28'44" West. ! 2.00 feet to the Point of Beginning. 156 ATTACHMENT "B" - N 25'28'02' £ 10,78' \ 6 7..50 IrT ~ -- ! 2 Oft ~.:,,,. · LB S 25'28'4, W 12.00' OREGON IdlCH~L O. R~NNICK RENEWAL DATE: O1-01-07 EXHIBIT u-2 Pr eporerJ by 8oseLine ~urveyiHg. LLC 515 1'4Wtop Or. NOwber(~. Or 97157 $cole: 1'-50' ~_~e. IN/3,/05 tL! Checkcd O.'a,,.,',_ lC_h_. .,,, ~ 14 ~ 157 ATTACHMENT "B" Exhibit Being a tract of land for easement purposes, over and across a portion of Lot 7 of thc Plat of"Boonm Crossing phase I", s~id plat lying in the SW '/, of Section 18. Township 5 South, Pamge ! West, Willamette Meridian. in the City of Woodbum. Marion County, Oregon. r-~.id easement more particularly described as follow~: The northeaslerly 3.00 feet of said Lot 7. 158 ATTAC_HMENT "B" N 25'28'02' 10.78' 5 9 8 LEI S :2~,'28'44 w 12.i' MICHAEl. 0. R£NNICK 21t8 RLNEWAJ. DArE Ot-OI 07 EXHIBIT ~-~ Easement Exh;bit Prepared by BaseLine Surveying. LLC ~!5 IlifWtop Dr. Newt)erq, Or 97157 Sc__o,_,... ,". ~o' ~?!~.....!.oZ~_,~_o~ J, L 159 ATTACHMENT "B" Exhibit n- 5 Being a tract of land for casement purposcs, over and across a portion of'Lot 8 ofthe Plat n£"Boones Crossing phase I", said plat lying in thc SW 'A of,%ction 18. Township 5 South. Range I West. Willamette Mcddian, in thc City of Woodbum. Marion County. Oregon. said casement more particularly described as follows: Beginning at the most northerly lot corner common to Lots 6 and 8 of said plat. thence along the linc common to said LoLs, South 18%t7'40" East. 34.81 ~ to the comer common to Lots 6, 7: and 8 of,said plat; Thence along the Dine between Lots 7 and 8, South 290S8'44'' West. 3.01 fcct; Thence leaving mid lot line. North 64'31 '16" WcsL 7.35 feet; tlxeace paredlci with and 7.50 fed wcstcrly of, by perpendi~lnr measure, the linc common to Lots 6 and 8, North 18*37'40" West, 39.93 fcet to the northeasterly linc of Lot g: Thence along the northcastcrly linc of Lot 8, South 61*01'01" East, 1 !. 12 feet to thc Point of Beginning. 160 ATTACHMENT "B" EXHIBIT Easement Exhibit Prepared by BaseLine Surveying. LLC ,~ I ~ Hilllop Dr. Newberg. Or g71.12 sco,e. 1'=50' Dote: Drawn' Checked ob. I 1 4-,~- 161 ATTACHMENT "C" EAS ~T LOCATION MAP 162 November 8. 2005 17. l.'m' 503-9X2-5242 First ('letx.v fihlil Michael J. Martinis Norman R. Hill L~,~i.. L Andcr~,n N,col., L I te,IF,er~ M,u/,ng II O Mildr(m.I Avenue SE .q.llcm. Oreg~m 97102 I)h,,n¢: 50 t,.'i66.$800 Fax: 501.566.6775 Mk'hael I. Mamni~: N,,nnan R, t4,11: nrh~,)pu.,~nct .c(im Randy Scott Senior l:.ngineering Technician City of Woodbum 270 MontgomcO' Street Woodburn()R 97071 Re': Boot;e.v ('ro.vxing Dear Randy: Enclosed please find the F. xtinguishn~ent of F. ascmcnt I discussed with you and Bob Shields. There are several easements we need to move. l lowever, tim most critical is the easement on l.ots 14 and 15. The attached Extinguishment of Easement and legal description should suffice. Mr. Shields wants this matter placed on the docket for the City Council for thc 14m. Please let us know if there is any difficulty in obtaining approval of this modi fication. Very truly yours, MARTINIS & Illl.l. '-7 Norman R. l lill NRI I/nih Enclosure c: Premier I)cvelopment w/eric. 163 Al IAL;I'IMI:N I "E" Michael J. Ma.ir, i~ Norman R. Hill ['han.i L. Andcr~,,~ N,cnla io. Hcdl~erg Mmbng Address II 0 Madrona Avenue SE ,q,dcm. Oregon 97102 503.566.5800 503.566.6775 E,,~"I Mic/~e! I. MamnL~: N,mnan R H,II: December 8, 2005 Via Fax 503-982-5243 and First Class Mail N. Robert Shields City of Woodbum 270 Montgomery Street Woodburn OR 97071 DEC 0 2005 WOODfURN Re: Boones Crossing Phase ! - Easements Dear Bob: Enclosed please find Modification of Easement for the Boones Crossing Phase I plat. The easement should cover Lots 6, 7 and 8. We previously sent you a document extinguishing the easements on Lots 14 and 15. After you have had a chance to review this document, please give me a call so we can discuss the most appropriate way for resolving this issue. Very truly ~'ours, MARTINIS & HILL NRH/nih Enclosure c: Premier Development, LLC w/enc. 164 January 18, 2005 Ilia Fax 503-982-5243 and First Class Mail Michael ]. M,~tlnis Norman IL Hill Lega/Assis~nu: Diana L. Anderson Nicola L. Hedberg Mailing Address: 110 Madrona Avenue SE Salem, Oregon 97502 Phone: 503.566.5800 Fax: 503.566.6775 Micho~! J. Maranis: marti~is@opusnet.com Emml for Nemnan R. Hill: nrh@opusnet.com N. Robert Shields City of Woodbum 270 Montgomery Street Woodbum OR 97071 Re: Boones Crossing Phase I - Easements Dear Bob: Thank you for your letter of January 17, 2006. I appreciate your efforts to assist in resolving these housekeeping matters as quickly and efficiently as possible. At your request, I have made the modifications you noted in your letter. Enclosed you will find a new Modification of Easemems document, together with exhibits, as well a new Extinguishment of Easemem documem. As we discussed on the phone on January 18, 2006, we have made a further change to the Modification of Easements. James and Tina Hudson purchased Lot 7. Accordingly, they should be added to the Modification of Easements. I have included a reference to the Hudsons in the Recitals. I have also included a signature line for the Hudsons. This should not change the City's position. It simply recognizes all of the proper signators. If you have any questions, please do not hesitate to contact me. Very truly yours, MARTINIS & HILL~ Norman R. Hill NRH/nlh Enclosures c: Premier Development, LLC w/enc. ..- 165 Agenda 11F Item January 17, 2006 TO: FROM: For/Thru: SUBJECT: Mayor and City Council through City Administrator Thomas P. Tennant, Capta~~'~ Scott D. Russell, Chief of Police~ Uquor Ucense - New Outlet RECOMMENDATION: The Woodburn City Council recommend that the Oregon Liquor Control Commission approve a liquor license application for Bear Creek Stores, Inc, trade name: Harry and David BACKGROUND: Applicant: Bear Creek Stores, Inc P.O. Box 712 Medford, Or. 97501 Owners/Managers: Giedh, Gary Steven 5200 SE 132nd Ave Portland, Or. 97236 License Type: Off-Premises - Permits beer, wine and cider sales for off-premises consumption only. On December 27, 2005 the Woodburn Police Department received an application requesting approval for an off- premise license for Harry and David. During the last 12 months the Police Depadment has not responded to any incidents at the business. °'-'4/~ J "~VA-'J [i t J~4,~ f) Agenda Item Review: City Administrat City Attorney Financ%~.~:/ 166 Mayor and City Council January 17, 2006 Page 2 The Business will operate 7 days per week, between the hours of 10:00 AM and 8:00 PM. Harry and David will be selling wine for off-premise consumption. The police depadment has received no communication from the public or surrounding businesses in support of or against the application. DI~gU$$1ON: The police department has completed a limited background investigation on the applicant business and found nothing of a questionable nature. An in- depth investigation was completed on the owners and no offenses that would preclude a license being issued or items of a questionable nature were located. The applicant states that they are seeking to sell unopened bottles of wine to their customers. Under the criteda identified by the OLCC and adopted by the City Council I find no reason not to recommend thai council recommend to OLCC approval of the application. FINANGIAL IMPACT: None 167 NOT'E: PLEASE CONSIDER OUR 90-DAY TEMPORAR¥_.%UTHORET¥ OREGON LIQUOR CONTRO~CO~MIS~ON ! i ~ LIQUOR LICENSE ! i ~ Full On-Premise~ Sal~ (~02.60~r) ~ ~ O Come,iai Esablishment ~ N~{' ..... ~ Cate~ Q Grea~r P~i~ge recommends ~at ~ Ilcon~e ~: O Passeng~ Ca~ar Q ~diflonal P~l~e O ~er Public L~a~n O ~her G~nt~ ~ Denied ~ O PAste Club By: Q Limit~ OmPremises Sa~, ($202.60~r) R ~ 0 ~ ~ V ~' ~ (~mm) (dam) N~e' ~ ~r~i~s Sales ($100~ 0~~~~~ .. ~ ~ Fun Pump, i [ T~e: ~ Br~ Public H~se ($252.~0) . ~ a O~ II Ap~i~n R~'d ~ Pamership ~mpany ~o l 1. Appian,s): [~e SECTION I of ~e Guide] (D Bear Creek Stores, Inc. 2. Trade Name (dba): Harry a'td David Woodburn COmpany Stores 3. Business Location: 1001 Arney Rd., Suite 204 Woodburu Marion Oregon 97071 4. Business Mailing Address: ?. O. Box 712 (PO lx~ number, street, rural route) 5. Business Numbers: 54].-864-2125 (county) (state) (ZiP code) Medford Oregon 97501 (city) (sam) (ZIP code) 5z~t-864-2885 6. Is the business at this location currently licensed by OLCC? (3Yes ~No (fax) 7. If yes to whom: .Type of Ucense: 8. Former Business Name: N/A 9. Willyouhaveamanager? C;EYes ONo Name: Gary Gterth (manager mu~t fill out an individual hi,tee/fon~) 10. What is the local governing body where your business is located? Woodburn, H~r].on County, OR (na,~ of ~ or county) 11. Contact person for this application: Janiece Newel[ 541-864-2125 (name) (phone number(s) 2500 So. Pacific Hil~hva¥, Me(tford~ OR 97501 541-864-2885 Jne~ell@bco.com (addm~) (fax number) (e-mail address) I undam/~.d that If my answem are no! tee and complete, the OLCC may deny my license application. pi Date///'7.6X,"~ PAID Cathy']~lt tneer ~Sr. V.P, & C-eneral .a'i,'l~_~le~ Date · I ~[~ 1-800-452-0LCC (6522) DEC 2 7 vlmww, o/c ¢,.s~ta.or. u~ ~ ~ I9~URN WOODBUI{N (889 13A January 23, 2006 TO: FROM: SUBJECT: Honorable Mayor and City Council through City Administrator Naomi Zwerdling, Interim Community Development Director 05-12 and Planning Commission's Approval of Design Review Variance 05-19 located at 515 S. Settlemier Avenue 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 January 12, 2006, the Planning Commission adopted a final order approving Design Review 05-12 and Variance 05-19 to modify Condition of Approval #4 of Design Review Case File 02-15 to reduce the required minimum driveway width from 26 feet to 15 feet at 515 S. Settlemier Avenue. The subject site is identified on Marion County Assessor Maps as Township 5 South, Range 1 West, Section 18BC, Tax Lot #4100. The subject property is approximately 2.33 acres in size, is zoned Single Family Residential (RS) and is designated Residential Less than 12 Units Per Acre on the Woodburn Comprehensive Plan Map. All of the surrounding properties are also zoned RS and designated Residential Less than 12 Units Per Acre on the Woodburn Comprehensive Plan Map. Single-family dwellings are located to the north, south and east (across Settlemier Avenue) of the subject site. The property to the west is vacant. On April 10, 2003, the Woodburn Planning Commission adopted a final order approving a 400 square foot well house for municipal water supply on the subject property and a variance to street standards on Settlemier Avenue. Condition of approval #4 of the final order stated "All existing and proposed driveways shall be paved and constructed to meet the requirements in Section 3.104 of the WDO. The driveway width shall be widened to a minimum of 26 feet and maximum of 36 feet." Agenda Item Review: City Administrato~<~'/j~' City Attorney ~ Finance .~'~/ff/ 169 Honorable Mayor and City Council January 23, 2006 Page 2 Section 4.102.08 of the WDO states "...Any request to modify a condition of approval is to be considered pursuant to the procedure and the standards and criteria applicable to a new application of the type of permit or zone change that is proposed to be amended, EXCEPT the modification of a condition limiting the "use" of property may only be considered as a Type IV Zone Map Change application..." The applicant submitted a Design Review application and a Variance application to modify condition of approval #4 from the previous approval of Design Review Case File No. 02-15 as is required by the above listed section of the WDO to reduce the required minimum driveway width from 26 feet to 15 feet. The applicant/property owner is the City of Woodburn. DISCUSSION: None. FINANCIAL IMPACT: There is no financial impact associated with the recommended action. 170 13B January 23, 2006 TO: Honorable Mayor and City Council through City Administrator FROM: Naomi Zwerdling, Interim Community Development Director t~..2-, SUBJECT: Planning Commission's Approval of Partition 05-07 and Variance 05- 20 located at 2701 N. Front Street 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 January 12, 2006, the Planning Commission adopted a final order approving Partition 05-07 and Variance 05-20 to partition a 9.4 acre parcel property into two parcels. Parcel 1 is 181,163 square feet and Parcel 2 is 228,469 square feet. The Planning Commission also approved the applicant's variance request to the street improvements on N. Front Street. The current owner (Woodburn Watumull LLC) requests the partition of the subject property to facilitate the sale of the proposed Parcel 1. The subject property is located at 2701 N. Front Street and is identified on Marion County Assessor Maps as Township 5 South, Range 1 West, Section 05D, Tax Lot #1900. The subject property is zoned Light Industrial (IL) and designated Industrial on the Comprehensive Plan Map. An existing 27,500 square foot building and parking are located on the proposed Parcel 1. An existing 51,600 square foot building and parking are located on the proposed Parcel 2. The adjacent property to the south is zoned IL, designed Industrial on the Comprehensive Plan Map and is a vacant parcel. The adjacent property to the west is zoned IL, designed Industrial on the Comprehensive Plan Map and is developed with a paving contractor business. The adjacent property to the east is zoned IL, designed Industrial on the Comprehensive Plan Map, and is developed with The Trading Company. The adjacent property to the north is a vacant parcel located outside the city limits and is zoned Marion County Urban Transition Farm (UTF} and designed Industrial on the Comprehensive Plan Map. Agenda Item Review: City Administrator~.~.. ~ City Attorney ~ Financ 171 Honorable Mayor and City Council January 23, 2006 Page 2 There are no wetlands located on the subject site. The subject site is located outside of the 500-year floodplain. The Applicant is Ztec Engineering, Inc., and the Property Owner is Woodburn Watumull LLC. DISCUSSION: None. FINANCIAL IMPACT: There is no financial impact associated with the recommended action. 172 WooD:BuRN I~¢or?~ra~l 1889 13C January 23, 2006 TO: FROM: SUBJECT: Community Development Director's located at 1791 West Lincoln Street Honorable Mayor and City Council through City Administrator Naomi Zwerdling, Interim Community Development Director/'/,Z-~ Approval of Partition 05-06 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 January 20, 2006, the Woodburn Community Development Director approved the partition of an existing 12,300 square foot property into two parcels in the single-family residential (RS) zone. Proposed Parcel 1 is 6,000 square feet in area and proposed Parcel 2 is 6,300 square feet in area. The subject property is addressed as 1791 West Lincoln Street. It is further identified on Marion County Assessor Maps as Township ,5 South, Range 1 West, Section 7CB, Tax Lot# 8400. The subject site is zoned Single Family Residential (RS), is designated Residential Less Than 12 Units Per Acre on the Comprehensive Plan Map and is the location of a single family dwelling which will be removed as part of the partition request. Adjacent properties to the north, south (across West Lincoln Street), east and west are zoned Single Family Residential (RS), designated Residential Less Than 12 UnJis Per Acre on the Comprehensive Plan Map and are developed with residential dwelling structures. There are no wetlands on the subject property, and the site is located outside of the 500-year floodplain. The applicant is Michal Kaszubowski and the property owner is George Sandoval. DISCUSSION: None. Agenda Item Review: City Administrator<~j 173 City Attorney Financ ~e/~?.~. Honorable Mayor and City Council January 23, 2006 Page 2 FINANCIAL IN, PACT: There is no financial impact associated with the recommended action. 174 OPENING STATEMENT FOR LAND USE HEARINGS REQUIRED BY ORS CHAPTER 197 This is the time set for public hearing in Formal Interpretation 05-01 for a formal interpretation application requesting Ordinance 2227 be interpreted to allow for the use of the subject property located at 1605 East Lincoln Road as a secured residential care facility. Telecare Mental Health Services of Oregon, Inc and Erik Berkey are the co-applicants. The law requires the City to list all substantive criteria relevant to each hearing. The applicable substantive criteria is listed in the notice of public hearing and is as follows: WOODBURN DEVELOPMENT ORDINANCE Section 2.106 Commercial General (CG) Section 4.102.09 Interpretation The full text of all listed criteria is printed in the staff report which has been distributed prior to this hearing and is also available now for inspection by any interested persons. 2. Ail testimony and evidence must be directed toward these criteria or other criteria in the plan or land use regulation which the person testifying believes apply to the decision. Please relate your testimony to the listed criteria. 3. The failure to raise an issue accompanied by statements or evidence sufficient to afford the City Council and the parties, an opportunity to respond to the issue, precludes appeal to the Land Use Board of Appeals based on that issue. 4. The failure of the applicant to raise constitutional or other issues relating to proposed conditions of approval with sufficient specificity to allow this Council to respond to the issue precludes an action for damages in circuit court. 5. Any participant may request, before the conclusion of the initial evidentiary hearing, an opportunity to present additional evidence or testimony. The City Council ~hall grant the request by either: (a) continuing the public hearing to a specific date and time at least seven days from the date of the initial evidentiary hearing, or (b) leaving the record open for at least seven days for additional written evidence or testimony. If the hearing is continued and new written evidence is submitted at the continued hearing, any person may request, prior to the conclusion of the continued hearing, that the record be left open for at least seven days to Page 1 - Opening Statement for Land Use Heatings submit additional written evidence or testimony to respond to the new written evidence. If the record is left open rather than continuing the hearing, any participant may file a written request to reopen the record to respond to new evidence submitted while the record was left open and the City Council shall grant that request. The applicant is allowed at least seven days after the record is closed to all other parties, to submit final written arguments, but not new evidence, in support of the application. 6. If additional documents or evidence are provided by any party, the City Council may allow any party to the hearing a continuance of the hearing, or leave the record open, to allow the party a reasonable opportunity to respond. 7. Everyone addressing the City Council is requested to come forward, use the microphone, and begin by giving your full name and address. We wish to hear from everyone who is interested in the proposal. (For those of you who wish to testify, please be sure to fill out the "Hearing Testimony Sign- Up Sheet" located on the table in the hallway). We will now proceed with the staff report. Page 2 - Opening Statement for Land Use Heatings Pa~e I FORMAL INTERPRETATION 05-01 FOR THE LOCATION OF A SECURE RESIDENTIAL CARE FACILITY (1605 E. LINCOLN) January 23, 2006 PUBLIC TESTIMONY SIGN-IN SHEET PLEASE PRINT YOUR NAME AND ADDRESS IF YOU WISH TO TESTIFY IN FAVOR. AME ADDRESS /t /( ~,( ,'i MAYOR: Please Return Sign-in Sheet to City Recorder Pa_~e 2 FORMAL INTERPRETATION 05-01 FOR THE LOCATION OF A SECURE RESIDENTIAL CARE FACILITY (1605 E. LINCOLN) January 23, 2006 PUBLIC TESTIMONY SIGN-IN SHEET PLEASE PRINT YOUR NAME AND ADDRESS IF YOU WISH TO TESTIFY IN OPPOSITION. NAME ADDRESS MAYOR: Please Return Sign-in Sheet to City Recorder FORMAL INTERPRETATION #05-01: Council Hring 1/23/06 - 1605 Exhibit ADVOCACY CENTER g for the Rights of Individuals with Disabilities January 23, 2006 Honorable Mayor Kathy Figley and City Council Members 270 Montgomery St. Woodburn, OR 97071 By Fax and Hand-Delivery Re: Property Located at 1605 East Lincoln Rd. Dear Mayor Figley and City Council Members: As the executive director of the Oregon Advocacy Center (OAC), I am writing to express my concem that Woodbum comply fully with fair housing requirements with regard to the property located at 1605 East Lincoln Rd, Woodbum. OAC is an independent, private, nonprofit agency that serves as the federally-mandated protection and advocacy agency for people with disabilities in Oregon. In this capacity, it seeks to ensure, among other things, that individuals with mental illness do not suffer housing discrimination. We represent the prospective residents of the proposed residential treatment facility on Lincoln Rd. and have been working for many months to secure their discharge from the Oregon State Hospital. As we understand the basic facts, Telecare Mental Health Services of Oregon, Inc. and Erik Berkey have jointly submitted a formal interpretation application requesting that the Woodburn Development Ordinance (WDO), specifically Ordinance 2227, be interpreted to allow for the use of the property located at 1605 E. Lincoln as a residential treatment facility for individuals needing treatment for mental diseases or disorders. The proposed use would involve individuals found "guilty except for insanity" of various offenses and placed in the jurisdiction of the state Psychiatric Security Review Board (PSRB). The individuals must be determined ready for conditional release by the PSRB prior to placement in the community. The facility in question was previously used as a treatment care facility for individuals with Alzheimer's Disease and the applicants seek an interpretation that their proposed use, as a group care facility, would not constitute a change of use from that currently allowed by the WDO. All of the prospective residents of the proposed facility have mental illness. Persons with disabilities, including mental impairments, are covered by the federal Fair Housing Act, 42 USC Sees. 3601 et seq. 42 USC Sec. 3604 provides in relevant part that it shall be unlawful: (f)(1) to discriminate in the sale or rental or otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of -1- Voice: 503-243-2081 · 1-800-452-1694 · TTY: 1-800-556-5351 · Fax: 503-243-1738 620 S.W. Fifth Avenue · Suite 500 · Portland, Oregon 97204-1428 (A) that buyer or renter, or (B) a person residing in or intending to reside in that dwelling after it is sold, rented or made available...~ The fact that the individuals who would receive care and treatment in the proposed facility were found guilty except for insanity of offenses has no beating on their right to be free from housing discrimination. See, e.g., In the Matter of the Commitment of J. W., 288 N.J. Super. 197, 672 A2d 199 (Sup. Ct. N.J. 1996) (state statutes prohibiting community placement of individuals acquitted by reason of insanity violated FHA). I have had the opportunity to review the formal recommendation dated January 23, 2006 from Naomi Zwerdling, Interim Community Development Director, that the City Council determine that the use proposed by the co-applicants differs from that specified in Ordinance 2227. I will focus on one particular matter of concern, rather than getting into other issues that the co-applicants will certainly address. To buttress her argument, Ms. Zwerdling relies on statements made at the September 3, 1998 Planning Commission meeting and the October 26, 1998 City Council meeting regarding the earlier request for a zoning change from Single Family Residential to Commercial General to allow the group care facility for individuals with Alzheimer's Disease. However, these statements from Planning Commission members and a City Council member seem to demonstrate bias against persons with mental illness or a history of substance abuse. The presumption of the speakers appears to be that housing for such individuals must be avoided at all costs. At the Planning Commission meeting, according to the memorandum, one commissioner stated regarding the facility: "The zone change would be appropriate as long as it is conditioned to be developed and used as a State licensed assisted living facility for the elderly so there would be no question about what it would be five years from now..I want it to be limited to elderly...I realize that halfway houses and drug halfway houses and criminals on their way back into society and mentally ill people, I know that they have to have a place to go, but I am just not prepared to say that this is what that place ought to be, this site ought to be .... "Another Commission member said,"...that in our condition, rather than just conditioning it upon a group home, could we word the condition so that it is a state licensed assisted living facility for the elderly, otherwise a group home might be for a mentally ill or halfway house for drug attics [sic]..." As presented in the memorandum, the speakers give no legitimate, neutral reasons for their conclusions. This is exactly the kind of discrimination based on stereotypes and unfounded fears that is forbidden by the FHA. At the City Council heating shortly thereafter, the memorandum quotes a City Council member as saying "I don't have a problem with the building, but what I have a problem with is it failing as an elderly care center and becoming a halfway house for drug addicts...in the same XThose who suffer discrimination under the FHA are entitled in appropriate circumstances to the award of attorney fees and compensatory and punitive damages, as well as other relief. -2- " t building." Significantly, staff responded tha is why the Planning Commission was very much concemed...that this zone is conditioned only for elderly health care facilities..." Again, there is no mention of legitimate considerations, but rather an assumption that everyone shares the same biases. It is a matter of great concem that the Interim Community Development Director actively seeks to justify her recommendation by citing such statements. Based on the record cited by Ms. Zwerdling, illegitimate considerations entered this case from the beginning, and, unfortunately, it appears that they continue to play a central role in the decision-making. We intend to monitor this matter closely to ensure that the City Council and other decision makers act in a neutral manner consistent with the FHA. Please feel free to contact me if you have any questions or concerns. Sincerely Bob Joondeph Executive Director cc: Dean Phillips -3- Peg~e McGuxre ~ ExeCUtive Director ~s~ g co~-a~ o~ o~ ~ xo20 S~ ~ Oregon 97~°5-~5t~ q4:~ or 1-800-424-3-247- l~-mail: pmegm~ '= FORMAL -~ouncil INTERPRETATION #05-01: Exhibit 2 ' Hring 1/23/06 1605 E Lincoln-- Background Information about Fair Housing for Neighborhood Groups Provided by the Fair Housing Council of Oregon What is "fair housing"? Fair housing laws make discrimination against certain named groups (called "protected classes") illegal in most housing transactions--including rentals, sales, advertising, lending, zoning, and issuing permits. Like other types of civil rights laws, fair housing law forbids discriminatory conduct--not thought. What groups are "protected classes" in Oregon? In the United States, discriminator conduct in housing transactions is illegal when it is based on race, color, national origin, sex, familial status, physical or mental disability. Oregon laws prohibit discrimination on all of the above, plus marital status and source of income. In Portland, Eugene, Corvallis, and Benton County all the above categories are protected classes, plus age and sexual orientation. The City of Ashland also protects sexual orientation. What types of housing are protected by the law? Fair housing law covers dwellings. Most cases concern rental houses and apartments. However, fair housing laws protect residents of other types of dwellings such as domestic violence shelters, nursing homes, and residence hotels. If someone moves into housing with the intention of staying permanently until moving again, fair housing law applies to the situation. How does zoning relate to fair housing? Zoning laws restrict or permit certain types of uses in various parts of a city. For example, not all types of residential uses--such as nursing homes--are permitted outright in every residential zone. However, if a single-family household is permitted outright in a zone, fair housing law protects other similar households from being treated differently because they are in a protected class. The most common protected classes found in group living are disability and family status. What types of disabilities are protected? Disability is defined as a physical or mental impairment that substantially affects one or more "major life activity" such as thinking, walking, working, etc. The act forbids discrimination against people with a history of disability or who are perceived to be disabled. The law does not allow the public to ask for information about the extent or type of disability. This definition of disability specifically excludes current users of illegal drugs although it includes other people with substance abuse problems. What is "familial status"? Fair housing law does not allow discrimination against a household with children under age 18 who live with at least one adult who is their designated custodian. What about health and safety issues? These are common concerns about special needs residential housing. Fair housing law does not allow people to hide behind their protected class. As a general rule, this means that people in protected classes must follow rules and regulations that govern the rest of the population. Also fair housing laws do not cover people who are a direct threat to people or property. Because people tend to make assumptions about people they are unfamiliar with, the law does require objective proof of the threat. Fair Housing Council of Oregon * 1020 SW Taylor St., Suite 700 · Portland, Oregon 97205-25Z2 Phone: 503-223-8197 or :L-800-424-3247 (TRY) · Fax: 503-223-3396 Visit our website at: www.fhco.org or e-mail us at: information@fhco.org I heard that a group home did not go through a conditional use process because fair housing law said its operators could request a "reasonable accommodation". What is that? People with disabilities are entitled to request an exemption to rules, policies, practices, or services in certain situations. (This right is.commonly called a right to request a "reasonable accommodation".) People have the right to request a reasonable accommodation if they meet the following criteria: (1) They are disabled as defined in fair housing laws; (2) their request is related to their disability; (3) their request is necessary for them to get, maintain, and enjoy their housing, and (4) their request is reasonable. Public officials such as zoning boards may grant an accommodation to a procedure if the request meets all four criteria. Isn't it important to the city to have neighborhood associations give input to city officials? Neighbors may feel frustrated when they have expressed an opinion, but city officials go ahead and act as though they are not listening to a neighborhood's wishes. Individuals have broad constitutional rights to speak and petition public officials. However, where fair housing or other laws speak to an issue, public officials do not always have thc right to do what neighbors ask. Civil rights laws arc no always popular. Our nation was founded on a belief in basic human rights. Because there is a wide variance among people, our system of laws struggles to balance one individual's rights with another's. And the outcome does not always satisfy every person all of thc time. Fair Housing Council of Oregon · 1020 SW Taylor St., Suite 700 · Portland, Oregon 97205-2512 Phone: 503-223-8197 or 1-800-424-3247 (TTY) · Fax: 503-223-3396 Visit our website at: www.fhco.org or e-mail us at: informationOfhco.org FAIR HOUSING COUNCIL of Oregon 1020 SW Taylor Street, Suite 700 + Portland, Oregon 97205-2512 + Phone: 503-223-8197 or 1-800-424-3247 (TTY) + Fax: 503-223-3396 + Visit us at www. fhco.org + E-mail: information~fhco.org Reasonable Accommodation and Modification Requests Under the Fair Housing Act (which is actually a group of laws), people with disabilities have the right to make reasonable accommodation and modification requests. The Fair Housing Act only applies to residential housing issues. Other laws apply to employment, public accommodations, commercial buildings, and access to government programs. Often, individuals with disabilities have a very difficult time finding housing that meets all of their unique needs. The right to request reasonable accommodations allows people with disabilities (or their advocates) to identify specific housing needs created by their disability and ask those with the authority to make the change to grant an accommodation in order to remove the barriers that prevents the housing from meeting the needs of the disabled person or population. The goal is to provide individuals with disabilities with as many housing options as possible. Reasonable accommodation requests can also serve as a communication tool and a way to educate housing providers and housing policy makers about the needs of individuals with disabilities. The main limitation on requests is that the change requested must be reasonable. What is reasonable varies depending on the particular housing situation, the decision- making entity, and the individual making the request. A request can be denied if the request, 1) creates an undue financial burden for the provider or jurisdiction, 2) creates an undue administrative burden for the provider or jurisdiction, or 3) fundamentally alters the nature of the service provided. If the individual or entity with the ability to grant the request claims that it cannot be granted because it meets one of these three standards, the burden of proof required to substantiate this threshold will rest with the party denying the request. In most cases, it will be subjected to evaluation by a neutral investigative body tasked with fair housing enforcement or a private litigation that will provide a final determination of the appropriateness of decision maker's claim. What is a reasonable accommodation? People with disabilities have the right to request exceptions to rules, policies, and practices related to housing. An individual or organization making a request may be asked to establish that they, or the individuals whom they represent, have a disability (or disabilities) that substantially limits a major life function, and that the accommodation or exception requested is necessary because of this disability. The accommodation requested must be necessary to access housing, maintain housing, or have full use and enjoyment of the housing. Disabilities, under the fair housing laws do not need to meet the same standard of severity as a disability that would enable someone to receive Social Security or other disability benefits. It is also important to note, a disability which may qualify for consideration of a reasonable modification and/or accommodation request under the Fair Housing Act, may not be visible or detectable by someone who is not aware of the specific circumstances of the disability. Examples of a Request to Modify a Rule, Policy, or Procedure If a landlord has a no-pet policy, a person with Epilepsy has the right to request an exception to the no-pet policy for a seizure dog. In this situation, the dog is the same as a wheelchair or a cane; it is a tool that helps the housing occupant to detect the signs of a seizure before it occurs and to prepare their environment and themselves for the onset of the seizure in a way that insures their optimum safety. The dog may also be trained to place its paws or body across the person in such a way as to limit the individual's movement during the seizure. The dog is not a pet. Because the dog is not a pet, the landlord cannot charge the resident any fees or deposits for the dog, just as the landlord cannot charge a deposit because someone uses a wheelchair. However, the landlord may charge the tenant for any damage the dog does to the property, and the resident is expected to care for the dog in appropriate ways. If the dog is a safety threat because the dog attacks another tenant, or constantly barks or exhibits other behavioral problems that disturb other residents, the landlord can tell the tenant s/he cannot have that particular dog. However, the resident still has the right to get a different seizure dog. Similarly, a city may receive a request from a developer to site a home for occupancy intended for several people who have a disability in a single-family, residential neighborhood. The occupants of the home are expected to require 24-hour support from contract caregivers. Permission cannot be withheld for the development of the home because the number of unrelated people living in the housing will not meet the city's definition of "family" or the neighbors claim that the services provided by the caretaker make the housing a commercial operation. The needs of the persons with disabilities for whom this housing is intended, for the caretaker and the ability to live in a "family style" setting, are considered a requirement or a tool (in the same way a the person in the previous example needed the seizure dog or a person with a disability limiting mobility may need to use a wheelchair). As such, to deny the siting of the housing because of unwillingness to affirmatively remove the specific barriers in the building or zoning codes that apply to this situation would cause the housing opportunities of the intended residents to be intentionally limited because of their disability. 2 Charging additional fees or deposits for necessary accommodations is prohibited because this in effect would mean that more money was being charged because the person or group of people involved are disabled. Reasonable accommodation requests do not meet wants or desires -- they meet needs. The individual or agency making the request is not choosing to make the request they must make the request in order to satisfy their housing needs or those of the population represented. What is a reasonable modification? Individuals with disabilities also have the right to request reasonable modifications to the structure of a residence. The modification must be necessary because of the disability and it must be reasonable. In private housing, under most circumstances the party making the request for the modification will be required to pay for the modification, l~t may also be requested that when the individual or individuals with the disability move out, the premises will be restored to its original condition and any damages caused by modification will be paid for by the party requiring the modification. Example of a Request for a Structural Modification A person who uses a wheel chair has the right to ask his/her private landlord to allow him/her to install a ramp on any inaccessible walkway that he/she uses in the apartment complex. Often, walkways in an apartment community are not considered to be open to the public, but part of an individual's residence. If the walkway just provides access to the individual's residence, then the landlord can require the individual to install and pay for the ramp. The landlord also has the right to require the tenant to have the work done in a professional manner and obtain a permit if the local building code requires a permit to install the ramp. Note: Under different laws, any housing provider or public jurisdiction receiving government subsidies for housing units and/or some other services are required to make and pay for the necessary modifications and are held to higher standards of accountability for granting and providing reasonable modification and/or accommodations than private parties. These requirements are part of most government contracts and are enforced not only under fair housing laws but also through government contracting laws and executive orders from the President. Failure of the contracting entity or individual to meet these standards may cause forfeiture of funds and/or require repayment of government funds and may jeopardize future abilities to qualify for government funds. When is it appropriate to request a reasonable accommodation or modification? Disabled individuals or their advocates can make a written or verbal request for a reasonable accommodation. It is recommended that the request be made in writing to avoid misunderstanding. Requests must be reasonable, related to the disability, and 3 further the ability of the disabled party to obtain or maintain housing, or access equal opportunity in housing choices. The request may be made at any time during the continuum of the process of housing development, housing transactions, or residency. Requests can even be made after a notice or warning has been received (often those who need an accommodation are not aware that there is a potential problem until they receive a warning or notice during the process of building, acquiring, or using the housing). It is recommended that the request be made as soon as the need is perceived. There is no limit to the number of requests, which can be made, and each request should be considered and responded to individually. There is no particular verbiage that must be used when making the request and the words "reasonable accommodation" or "reasonable modification" are not specifically required to initiate the process. In some cases, an individual who needs an accommodation or modification may not understand they have this right and the housing provider, land use jurisdiction, policy making body, etc, are expected to affirmatively offer this option when special needs are identified or perceived. A higher expectation of understanding of the process is implied by the role of the party with the ability to grant the request. Verification from a qualified professional may be necessary. The party receiving the request has the right to ask for verification from a "qualified professional" that the individual who has made the request is disabled (or represents a person or a group of people with disabilities) and the change or modification is necessary because of the disability. A qualified professional is anyone with expert knowledge in the field of this disability, with knowledge of the disability of the actual or intended user of the housing, and the needs as they relate to the disability. Although verification that the request is related to the disability is needed, this does not mean that a doctor's prescription is necessary for the requested change, nor does it mean that the qualified professional is a member of the medical profession. The qualified professional must merely have an understanding of the disability and the needs as they relate to the disability. An example of qualified professionals who are not members of the medical field are people such as counselors, licensed practitioners in fields related to treatment strategies and practices, social workers, representatives of support organizations for people with specific disabilities, recovery group leaders, and/or special needs housing developers/providers. How do ! make a reasonable accommodation request? The request may be made verbally or in writing. In general, it is a good idea to document your interaction with the party who has the authority to grant the request. Therefore, it is preferable to put a request in writing and to keep a copy of the request for your own records. The request is recommended to include the following: "This is a request for a reasonable accommodation." 4 "The disability of the individual/group substantially limits the major life function(s) of " "Because of the limited ability to need " , I/we/the intended users "Therefore please make an exception to your policy." "This accommodation is needed in order to "Please respond to this request by (specify a date, generally 10-14 days from the date you send the notice should be sufficient time)." "If I/we don't hear back from you by assume that you have denied the request." (date specified above), I/we will Be very clear that the need is connected to the disability and that the change is necessary for you/the group or individual you represent to live in/obtain/maintain/or exercise equal opportunity in choice of housing. If the request is ignored you can pursue an enforcement action because you have set a time limit. If there is no response by the end of the time period you may proceed as if the request was denied. If more information is requested about reasonable accommodations or fair housing in general, you may call our office or the HUD Fair Housing Enforcement Center, 1-800- 877-0246. Why can a reasonable accommodation request be denied? Disabled individuals or their representatives have the right to determine which change or exception would best meet the needs for the specific disability. However, once a disabled individual or their representative establishes that the request is necessary because of the disability of the actual or intended user, a request may be denied for three reasons: 1) The change or exception would create an undue financial burden, 2) The change or exception would create an undue administrative burden, 3) The change or exception would fundamentally alter the nature of the business. The request cannot be denied merely because it creates some financial expense or requires some extra paperwork. The expense or the administrative work must be undue. The same is true if the change requires a change in the way business is conducted by the party of whom the request is made. Most reasonable accommodation requests will require some change to the way business is conducted, however the threshold required to deny the request, must create a change that is so fundamental that it completely changes the focus from housing to another area of service or it creates a health or safety hazard to others who will be affected. What does one do if the reasonable accommodation request is denied? If your request meets the above criteria and the decision making party denies or ignores the request, you can pursue enforcement action by filing an agency complaint with either the Federal Department of Housing and Urban Development (HUD) or the Oregon State Bureau of Labor and ]:ndustry (BOLI), or you may file a lawsuit. For an appropriate referral, please call the Fair Housing Council of Oregon at 503-223-8197 or 1-800-424-3247. FORMAL Council INTERPRETATION #05-01: Exhibit 4 Hring 1/23/2006 - 1605 E Lincoln Presented to Woodburn City Council January 23, 2006 Pr~ared by Dean M. Phillips Davis Wright Tremaine LLP 1300 SW Ffffla Avenue, Suite 1300 Portland, OR 97201 (503) 241-2300 Woodburn City Council Interpretation Written Presentation City Council Hearing January 23, 2006 Co-Applicants · Property · Case File No. · Eric Berkey/Telecare Mental Health Services of Oregon, Inc. 1605 E. Lincoln Street, Woodburn, OR Formal Interpretation 2005-01 (City of Woodburn Reference No.) Honorable Mayor and Council Members: This matter is coming before this Council on an application requesting an interpretation of the Woodburn Development Ordinance, Ordinance No. 2313 (WDO), as amended and Ordinance 2227. The application is brought pursuant to Section 4.102.09 of the WDO by co-applicants Mr. Eric Berkey, property owner, and Telecare Mental Health Services of Oregon, Inc. ("Telecare'), lessee of the subject property. These written comments and arguments are intended to be entered as part of the record on the hearing for this matter and are intended to supplement the co-applicant's testimony given at the time of the hearing. Background This matter first came before the City pursuant to a request for a Community Development Director's Interpretation on behalf of Telecare by letter dated April 1, 2005. A copy of the letter is attached as Appendix A. That letter requested a Director's Interpretation of the WDO, or any other applicable zoning ordinance, as to whether or not the proposed use of the property for a mental health residential care facility was an approved use. Prior to the subject application, the facility had been used by Mr. Berkey as a residential group care facility. At that time, the property was zoned residential and Mr. Berkey and his co-owner requested a zone change to commercial general (CG) for use as a residential care facility. What the City granted was a zone change with a specific restriction on use that the property be used for an "elderly group care facility." The facility was licensed by the state Department of Human Services as a residential care facility with an endorsement for treatment of Alzheimer's Disease and other mental disorders. A copy of the license for the facility is attached as Appendix B. Mr. Berkey used the facility for the period September 2001 through January 17, 2005 for this use. Mr. Berkey closed operations of his facility on January 5, 2005 for financial reasons. The PDX 1376952vl 42577-45 1 state has since placed a moratorium on new construction of any senior residential care facilities. Because of the single use zone restriction, in April of 2005, the owner and Telecare sought an interpretation of the WDO from Mr. Jim Mulder, the Community Development Director at the time. Mr. Mulder responded with a Planning Director's Interpretation by letter dated April 19, 2005 indicating that "a group care facility use is allowed to continue on 1605 E. Lincoln Street site as long as the use does not cease for a continuous period of six months for Section 1.104.02 of the Woodburn Development Ordinance." A copy of the City's April 19, 2005 letter is attached as Appendix "C.' Based upon that Planning Director's Interpretation, Telecare and the property owner entered into lease negotiations pursuant to which a lease dated May 5, 2005 was executed between the parties. This lease limited the use of the facility to a residential care facility, which use was consistent with the City's interpretation given in the April 19, 2005 letter. After the lease negotiations, Mr. Mulder sent another letter dated May 19, 2005, purportedly retracting the decision on April 19, 2005. The conclusion of the May 19, 2005 letter is as follows: I conclude based on the information I have reviewed, that the proposed use cannot be readily classified. Therefore, the City Council will need to interpret how to classify the uses of Type IV land use decision. A copy of the May 19, 2005 letter is attached as Appendix "D.' Unfortunately, the co- applicants had entered into the lease agreement based on the initial interpretation of the Director. This reversal of this decision was based upon no new information, simply a purported change in position. A copy of Ordinance No. 2227 is attached as Appendix liE.II Following the May 19, 2005 letter, a meeting was held on May 31, 2005, with participants being Mr. Mulder, Mr. Bob Shields, Mr. Bob Engle (attorney for the owner), the undersigned and another representative of Telecare. No agreement was reached on the interpretation of the applicable zoning. The co-applicants now seek a formal interpretation of the City Council as allowed by the WDO. The co-applicant's assert that the Community Development Director's initial decision is the final and correct decision of the City on which the co-applicants were entitled to rely, This Type IV decision is an opportunity for the City Council to correct a grievous error that has been committed by the City Staff which has caused the co- applicants significant financial harm. PDX 1376952vl 42577-45 2 Analysis If one reviews the record in this matter, it is clear that the original decision of Mr. Mulder as contained in his letter of April 19, 2005 was the correct decision, whether or not staff was relying on the WDO or upon Ordinance 2227. This conclusion is demonstrated by the following analysis. Ordinance No. 2227 Dated October 29, 1998 Controls the Zoning for the Subject Site. A threshold question is whether Ordinance 2227 or the WDO controls the zoning for the subject property. While the co-applicants believe that under either interpretation, the proposed use by Telecare is a continued use of an elderly group care facility, a careful analysis of the zoning ordinances adopted by the City indicates that Ordinance 2227 is the applicable ordinance. In reviewing Ordinance No. 2313 (which has an effective date of July 1, 2002), that ordinance specifically identifies other zoning ordinances that were repealed with the adoption of the WDO. Those ordinances are Ordinance No. 1807, 2076 and 2186. See Ordinance 2313, Section 4. A copy of Ordinance No. 2313 is attached as Appendix "F.' As can be seen from this ordinance, it is clear that Ordinance 2227 was not repealed. Therefore, the only legal conclusion that can be made is that the City Council did not intend to repeal Ordinance 2227. If a statute or ordinance is clear from its language and context, no further investigation is appropriate into legislative intent. Portland General Electric Company v. Bureau of Labor & Industries, 317 OR 606, 859 P2d 1143 (1993). Furthermore, Oregon statutes provide guidance for judges in interpreting statutes. ORS 174.010 clearly provides that one interpreting statutes or legislation must "not insert what has been omitted, or to omit what has been inserted." This prescription would apply to quasi-judicial proceedings such as this Type IV hearing before the City Council. In reading the staff report, there does not appear to be any disagreement on this issue. The Initial Decision of the Community Development Director's Interpretation is the Final Land Use Decision of the City. The co-applicants in this matter requested a Community Development Director's interpretation pursuant to WDO pursuant to a letter from the undersigned dated April 1, 2005. That request for interpretation was made pursuant to WDO 4.102.09 which anticipates an interpretation in a final decision which can be either Type II, III or IV. The Community Development Director responded with an interpretation dated April 19, 2005 indicating that the use was allowed as a continued use citing both Ordinance 2227 and the WDO. This decision became the final Type II decision because any other changes to the facility needed for Telecare's operation were simply building code issues and not zoning issues requiring further land use clarification. OAR 661-010-0010(3) PDX 1376952vl 42577-45 3 dictates when land use decisions become final. That Administrative Rule provides as follows: (3) "Final decision": A decision becomes final when it is reduced to writing and bears the necessary signatures of the decision maker(s), unless a local rule or ordinance specifies that the decision becomes final at a later date, in which case the decision is considered final as provided in the local rule or ordinance. In this particular case, the April 19th letter became a final decision because it was not appealed by any party within 21 days. Co Ordinance 2227 Specifying a Single Use for an "Elderly Group Care Home" Provides Legally Insufficient Criteria. Ordinance 2227 provides that the applicable zoning for the subject site (which appears to be a single use zone) is as an "elderly group care facility." Ordinance 2227 does not provide for any definition or description of the word "elderly." To give meaning to Ordinance 2227, one can easily look to the common understood definition "elderly." Elderly means "of, relating to, or characteristic of later life." Webster's New Colligate Dictionary, G & C Merriam Company (1974). Clearly, neither the common ordinary usage of the term elderly nor the City Ordinance has any definitive guideline in terms of the age of individuals that meet the criteria of elderly. One can assume that later life is simply someone above minority age or young adult. However, for land use purposes, the standards and criteria must be sufficiently definitive to allow applicants to reasonably determine whether they can obtain compliance. Failure to do so violates ORS 227.173 which requires that "approval or denial of a discretionary permit application shall' be based on standards and criteria, which shall be set forth in the development ordinance .... " Although the City is allowed latitude in adopting nonspecific and somewhat subjective standards and criteria, the City's application of the standards and criteria to a development application must inform the applicant of what is required to demonstrate compliance. Commonwealth Properties, Inc. v. Washington County, 35 Or App 387, 398-99, 582 P2d 1384 (1978); Ellis v. City of Bend, 28 Or LUBA 332 (1994). "An applicant.., should be able to know the standards by which his application will be judged before going to the expense in time, investment and legal fees necessary to make application." Commonwealth Properties, Inc. v. Washington County, 35 Or App at 399 (1978), quoting Sun Ray Dairy v. OLCC, 16 Or App 63, 517 P2d 289 (1973). The City's interpretation and application of Ordinance 2227 does not comply with this standard because co-applicants cannot reasonably, or even possibly, determine what type of use would comply with "elderly" group care facility. In other words, would co-applicants be in violation of the land use laws if a persons having ages of 45, 49, 50 or 56 would be admitted. In fact, the testimony will indicate that under the initial use of the facility, the owner (co-applicant) had individuals ranging from the lower 50 years of age as residents. PDX 1376952vl 4257745 4 ' Although the City approved the license for the facility issued by the Department of Human Services as a "residential treatment facility", there was no age limit listed on the license. Again, there is no discernable standard or criteria upon which the applicants can determine whether they will qualify. Interpretation of Ordinance 2227 as Limited to Individuals Age 60 or Older Is Without Justification and Eliminates All Economic Viability for the Property Mr. Berkey (co-applicant) will testify that the state of Oregon has, since the initial use of the facility, placed a moratorium on new construction of assisted living and elderly care facilities until 2009. Clearly, if the facility were being proposed as a newly constructed facility, it would not be able to be built under this existing moratorium. However, as a continued use of an existing facility, the right to use runs with the land under Section 4.102.06 of the WDO. In addition, if the Council interprets the use of this facility as limited to only those individuals who are 65 years of age or older, the Council will have eliminated all economic uses of the property in the current market. Such an interpretation renders the property of no economic utility to the property owner and will subject the City to liability for inverse condemnation, i.e., a regulatory taking. See Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 935 P2d 411 (1997). The Use Proposed by Telecare and the Owner is a Continued Use Entitled to Approval Under Ordinance 2227 and the WDO. Testimony will indicate that Mr. Berkey's initial use of the facility was for a residential care facility. While most residents were treated for Alzheimer's, there was a wide range of ailments associated with the residents and the facility was fully licensed for treatment of Alzheimer's as well as individuals with other disabilities. While Alzheimer's generally does afflict people of 60 years of age or more, it is not limited to those age groups. The website on Alzheimer's information indicates that "while younger people also may get AD (Alzheimer's Disease), it is much less common." www.alzheimers.org\pubs\adfact.html#introduction. Significantly, neither Ordinance 2227 nor the City's approval restricted the use of the facility for Alzheimer's care facility. The testimony will also indicate that in addition to Alzheimer's treatment, the facility was licensed simply as a "residential care facility." Testimony will indicate that this license was approved by the City without questioning as to the type of individual that was treated, the diagnosis of the mental disease or the prospect for cure Therefore, the use made of the facility from September 2001 through January 5, 2005 was in fact a mental health treatment facility qualifying as an elderly group care facility. PDX 1376952vl 42577-45 5 The testimony will also indicate that Telecare's treatment will also be an "elderly group home care facility." The mental health treatment facility will not treat minors. Therefore, the use of the property is a continued use as provided by WDO 1.104.062. Individuals being treated for Alzheimer's are generally under drug treatment just as other individuals suffering from mental disabilities. There is no basis under the existing zoning code to base a use decision upon the type of diagnosis of the particular type of mental disability or any other disability. It is quite clear that the City did not care what type of mental illness affected the residents, the City simply did not want a future use to be for "half way houses" or "drug half way houses and "criminals on their way back into society and mentally ill people. I know that they have to have a place to go, but I am just not prepared to say that this is what that place ought to be." This basis is clearly not a lawful basis because it is discriminatory under the Federal Housing Act (42 U.S.C. 3601 et. seq.) Furthermore, there is not a sufficient lawful basis under the standards and criteria to exclude people with mental disabilities. The City's staff report includes a number of points purportedly justifying the interpretation that the proposed use is not a continued use. These points include statements that the facility windows will have to be changed, that the fire pull stations will have to be modified to provide safety and security, that the fencing on the facility will exceed the zoning requirements, and finally that the floor plan anticipates office/administrative space in some of the bedrooms. The only item on this list that can even remotely be linked to zoning issues is the fencing requirement. The co-applicants have agreed to modify their proposal to only install a 7 foot high fence which is allowed by the existing zoning code. All other issues raised by staff are not zoning issues but building code enforcement and licensing issues. Neither the WDO nor Ordinance 2227 require any particular type of licensing for the facility or particular type of building construction. These are building official issues and the co-applicants are fully prepared to comply with all building requirements. Again, the City is attempting to use the Building Code as a zoning requirement and two are fundamentally different. The clear reason the City does not want this proposed use is that it will treat people with disabilities - even though the initial use of the facility was precisely that use. Fo The Basis For Denying The Use Proposed by Co-Applicants is Clearly a Discriminatory Basis. The City's staff report contains in excess of three pages re-iterating the basis for the adoption of Ordinance 2227 on the concept that the use of the facility was to be for an "elderly group care facility". The justification was based on prior City Council testimony that indicated that Council members did not want the property to be used for the "mentally ill or half-way house for drug addicts." Clearly, this restriction on use violates the Fair Housing Act (42. U.S.C. 3601 et seq.) as well as other federal statutes on discrimination against persons with disabilities. PDX 1376952vl 42577-45 6 Go The City's Requirements to File a Formal Application Criteria is Without Legal Basis Under the WDO. Section 5.104.03 of the WDO simply provides that the application for a formal interpretation shall include "a completed City application form, filing fee, deeds, notification area map and labels, written narrative statement regarding compliance with criteria, location map and the following additional exhibits: citation of the portion of the WDO subject to interpretation; a description of specific circumstances for which an interpretation is requested; evidence that the subject property best need relative to other properties in the existing developable land inventory already designated with the same zone considering size, location, configuration, visibility and other significant attributes of the subject property. When picking up the application from the City, Telecare staff was advised by City Planning Staff that the co-applicants would also have to comply with WDO 6.101.02 which provides criteria clearly applicable to new developments but are clearly not applicable to continued use applications or many other WDO interpretations. On June 28, 2005, the co-applicants submitted an application form for a Type IV interpretation providing all relative items and information as required by WDO 5.104.03. The co-applicant's application is on file with the City and is incorporated herein by reference and should be made a part of the record. As a result of the initial application, the City responded by letter dated July 27, 2005 that the application was incomplete because it failed to address guidelines provided by the WDO an interpretation of uses, Section 4.102.09, failed to include a site design plan (showing approximately 12 specific items), failed to include a public safety and security plan, failed to include a traffic impact report, failed to include the number of staff required to operate this secured residential facility, and other alleged items of failure. A copy of the July 27, 2005 letter is attached hereto as Appendix "E.' It is quite clear that the City has been treating this as a new facility because all the requirements listed relate to a new facility use versus a continuation of use. The co-applicants objected to these requirements of the City, and continue to object to the same. Such requirements are without legal foundation in the WDO. The only requirements identified for an interpretation are contained in 5.104.03 and the co-applicants have fully complied with the requirements contained in those sections. It is obvious that the City has imposed arbitrary standards and conditions upon the formal application submitted by co-applicants. The only conclusion that can be reached from this is that the City simply does not want the continued use of a residential care facility within this zone even though Ordinance 2227 specifically authorizes such use. Decisions for mental health residents based this reasoning are discriminatory under the Fair Housing Act (42 USC 3601 et seq). PDX 1376952vl 42577-45 7 Although submitted under protest, the co-applicants complied with the City's requirement by submitting supplemental information dated September 19, 2005, which supplemental application is incorporated herein by this reference and is requested to be made a part of the record. Ho Even if the City Council Determines that Ordinance 2227 Has Been Superseded by the WDO, the Use of a Residential Care Facility Within the Commercial General Zone is Lawful Under the WDO. Under the WDO the zoning for the subject property is identified as general commercial. Section 6.104 of the WDO identifies the use classifications appropriate in a commercial general zone. Included as an outright permitted use within the commercial general zone are facilities for "social assistance." The WDO uses NAICS classifications to describe the uses permitted within the zone. The "Social Assistance" category is identified in the NAICS code by general classification of 624. By designating category 624 as a permitted use, that designation would include any subcategories unless such subcategories were specifically excluded. See WDO 4.102.09(c)(3). Section 624 describes "industries in the social assistance subsector that provide a wide variety of social assistance services directly to their client. These services do not include residential or accommodation services, except on a short stay basis." Neither the NAICS definition nor the WDO describe or provide any criteria relating to short stay. Clearly, the residents to be treated by Telecare are not intended to be there on a permanent basis nor take up permanent residential care. These are in fact on a short stay basis in that they only stay as long as their treatment demands. Some of the subcategories within Category 624 include "Community Housing Services," No. 62422. This industry comprises establishments primarily engaged in providing one or more of the following community housing services: (1) short term emergency shelter for victims of domestic violence, sexual assault, or child abuse; (2) temporary residential shelter for the homeless, runaway youths, patients of families caught in medical crisis; .... ' Clearly, the patients being treated by Telecare are caught in medical crisis and are entitled to community housing. Another use authorized under General Category 624 is "temporary shelters," No. 624221. This industry comprises establishments primarily engaged in providing: (1) short term emergency shelters for victims of domestic violence, sexual assault, or child abuse and/or (2) temporary residential shelter for homeless individuals or families, runaway youth, patients of families caught in medical crisis." Again, the patients caught in medical crisis are precisely the type of individuals being treated by Telecare. Conclusion Whether Ordinance 2227 or the WDO is applicable to the use being proposed by the owner and co-applicant, the use being proposed is a continuation of a prior use PDX 1376952vl 42577-45 8 I i authorized under Ordinance 2227 and the WDO. The owner and co-applicant are I entitled to a continuance of that use and approval by the City Council. Respectfully Submitted, I e LLP I ~n Dean M. Phillips I DMP:dtl I Attachments ,, I PDX 1376952vl 4257745 9 Davis Wright Tremaine .x2 LAWYERS ANCHORAGE BELLEVUE LOS ANGELES DEAN M. PHILLIPS Direct (503) 778-5284 dean phillip.s ~dw t.com NEW YORK I)ORTLAND SAN FRANCISCO SEATTLE SUITE 2300 1300 SW FIFTH AVENUE PORTLAND, OR 97201-5630 S~ANG~-~A~ WASmNGTON, D.C. TEL (503) 241-2300 FAX (503) 778-5299 w w w. d w t. c o m April 1, 2005 Mr. Jim Mulder 270 Montgomery Street Woodbum, OR 97071 Re: Request for Planning Director's Interpretation; Permitted Use within a Commercial General Zoning Designation. Dear Mr. Mulder: Background Facts: Please be advised that we represent Telecare Mental Health Services of Oregon, Inc. ("Telecare"). Telecare is in the process of lease and/or purchase negotiations with the owner of a facility located at 1605 East Lincoln Road, Woodbum. This property is near the boundary line of the city limits and is within a zone under the city's official zoning map of"CG". Telecare operates a number of mental health facilities in various states, including Oregon. The subject facility is a property which is under consideration for an additional facility within Oregon. Telecare has been contacted by the State of Oregon, Department of Human Services to operate this additional mental health care facility. Such facilities involve the semi-permanent housing of persons suffering from mental disabilities, including persons under jurisdiction of the court systems who have been found to have a mental disease or disorder. The treatment of such individuals includes psychiatric care and treatment as well as treatment for various addictions, including drug addictions. This facility will be secure such that the individuals under involuntary commitment are behind locked doors or secure areas so that they cannot leave without authorization from the court system. Individuals who consent to treatment may leave at their own volition. The operation of this facility, as it will be conducted, meets the definition of a "Residential Treatment Facility" as contained in ORS 443.400(9). PDX 1260853vl 4257745 Portland APPENDIX A Mr. Jim Mulder April 11, 2005 Page 2 Request for Director's Interpretation: Pursuant to Section 4.102.09, this is to request a Community Development Director's interpretation of the permitted use under the City of Woodburn's Development Ordinance, Ordinance No. 2313 ("WDO"), as amended. Analysis: Under the zoning map, the subject property as identified as "CG". Pursuant to Section 6.104 of the WDO, the uses specifically permitted within a CG zone are as follows: Social Assistance (624). Social Assistance services include" other individual and family services" (6241). Telecare provides social assistance services to individuals with mental disabilities. Telecare's use squarely fits within the description of"other individuals and family services," a permitted use with the "CG" zone. While I am sure the City is aware of this, it should also be noted that, being individuals with mental disabilities, these individuals who are to be housed in Telecare's program are entitled to the protections of the Federal Fair Housing Act of 1996. Due to the time constraints that the State of Oregon has placed on providing services under contract with the state, your prompt response to this request for interpretation will be appreciated. Please do not hesitate to contact 'me if you have any questions relating to this request. Very truly yours, Davis Wright Tremaine LLP /s/Dean M. Phillips Dean M. Phillips DMP:gw CC: Kevin McChesney Robert Shields PDX 1260853vl 4257745 Portland · 0~ ~¥1~:80 900~-~-iO APPENDIX B 1G: 58 503982524~ CITY OF WOODBURN PAGE 01/01 188¢ April 19, 2005 Davis Wright Tremaine LLP ATTN: Dean M. Phillips Su/te 2300 1300 SW Fifth Avenue Portland, OR 9720%5682 RE: Properly located at 1605 East Lincoln Street The property located at 1605 East Lincoln Street is zoned "Commercial General" (CG). A residential mental health and substance abuse facility (62322) is not an allowed use in the CG zone per the Woodburn Development Ordinance (Effective July 1, 2002). I have reviewed the Social Assistance (624) use in the North American Industry Classification System (NAICS) book published in 1998 and determined that a residential mental health and substance abuse facility (62322) does not fit in the Social Assistance (624) use listed in Section 2,106.01.M.2 of the Woodbum Development Ordinance. On November 9, 1998 the Woodburn City Council approved ordinance No. 2227 for a conditional zone change on the 1605 East Lincoln Street site to allow for a group care facility. A group care facility was allowed in the OG zone per Section 26.010(b)(16) of the Woodbum Zoning Ordinance. A residential mental health and substance abuse facility (62322) is classified under the group care facility use in the NAICS book. A group care facility use is allowed to continue on the 1605 East Lincoln Street site as long as the use does not cease for a continuous period of § months per Section 1.104.02 of the Woodburn DevelOpment Ordinance. If you have any questions regarding this matter, please contact me at (503) 982- 5246, Sincerely, ulder munity Development Director APPENDIX C May 19, 2005 BuRN WOOD . Incorporated 1889 MAY $ 0 2005 Dean M. Phillips Davis Wright Tremaine LLP 1300 SW Fifth Avenue, Suite 2300 Portland, OR 97201-5682 RE: Use of Property Located at 1605 East Lincoln Street Dear Mr. Phillips: In a letter mailed to you on April 19, 2005, I responded to your request for a zoning use interpretation.. My response was based on information you provided and information provided by my staff. However, subsequent to sending my letter, I have further researched the prior land use approval on the subject property (see enclosure) and applicable sections of the Woodburn Development Ordinance (WDO). After reviewing this information, I conclude that I am not able to determine how to classify the proposed use without going through a Type II or IV land use decision process as specified in WDO 4.102.09.C. This section provides two ways for the City to formally interpret how a use is to be classified. The Community Development Director may, as a Type il land use decision, determine that a proposed use is similar to a permissible use in the zone. Or, the Community Development Director may, as a Type IV land use decision, request a formal interpretation from the City Council if the Director determines that the use cannot be readily classified. Alternatively, any person, upon application may request such an interpretation. I conclude based on the information I have reviewed, that the proposed use cannot be readily classified. Therefore, the City Council will need to interpret how to classify the use as a Type IV land use decision. If you desire to pursue this matter, it will be necessary to submit an application for a formal interpretation (WDO 5.104.03). If you have any questions regarding this matter, please contact me at (503) 982-5246. Singerely, ¢~,.m MU der ~bmmunity Development Director Cc: John Brown, City Administrator Bob Shields, City Attorney Enclosure Community Development Department 270Montgomery ,Street · Woodburn, Oregon 9707'1 Ph. 503-982-5246 · Fax 503-982-5244 APPENDIX D COUNCIL BILL NO, 193~ ORDINANCE NO. 2227 AN ORDINANCE GRANTING A CONDmON~L ZONE CHANGE ON CERTAIN PROPERTY LOCATED AT 1605 E. LINCOLN STREET FROM SINGLE-FAMILY RESIDENTIAL (RS) TO COMMERCIAL GENERAL (CG); APPROVING A SITE PLAN REVIEW APPLICATION; AND ATTACHING CERTAIN CONDITIONS THERETO. Wlq~'.REAS, the applicants, Erik Berkey and Aaron Ensign, submitted Application No. 97-08 for a zone change from single-family residential (KS) to commercial general (CG); and WItEREAS, Application No.' 98-01 was submitted by the applicants for site plan approval; and WItEREAS, the City Council conducted a de novo public hearing on October 26, 1998 and heard testimony on said applications; NOW, TREREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. The subject property is owned by Erik Berkey and Aaron Ensign and is described as follows: Marion County Assessor map TSS, R1W, Section 17BA, Tax Lot 200. Section 2. That based upon the findings and conclusions contained in Exhibit "A" attached hereto, the zone designation on the subject property is changed from single-family residential (KS) to commercial general (CG). Section 3. That the zone change granted by Section 2 of this ordinance shall allow only' an elderly group care facility. No other commercial use shall be allowed without first obtaining approval thereof through the zone change process. Section 4. That the site plan of said property is approved based upon the findings and conclusions contained in Exhibit "A" attached hereto. Section 5. That the zone change and site plan approval are .subject to the conditions contained in Exhibit "B' attached hereto. Approved as to form.'~'t'~/~~ [0- ~ ~ ~ ~ <~ City Attorney Date Page l- COUNCll. BILLNO. 1934 ORDINANCE NO. 2227 APPENDIX E Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ~ Mary' Ter~ant,'City Recorder City of Woodburn, Oregon APPROVED: NANCY A. KIFtJiSEY, MAYOR/ / November 9, 1998 ~ November 10, 1998 November 10, 1998 November 10, 1998 Page2- COUNCIL BILL NO. 1934 ORDINANCE NO. 2227 July 27. ~-00~ c;TY OF' BuRN PA~E l.corpora'~e~ ~889 telecare Corp. ATTN: Dean M, Phillips . 775g ,SE 72nd Avenue Portland, OR g7308 P°~,if" FaxN0te 7671.. b=a~/~_"~0~' J~ag~ ,#a'l~ 3 ' Re: Notice of in~omplete Application Pursuant to ORS 227.178; Case File No. Formal Interpretation 2005-01 for property located at '1605 East Lincoln Street. Dear Mr. PhiTlips: Thank you for submitting the above-referenced land uae application to the City of Woodbum Community Development Department. I have reviewed the application materials submitted and determined that your application is not complete. The following items and information must be provided before your applir, ations will be deemed cemplete: Include narrative to address'the guidelines provided by the WDO in the 'interpretation of U~-~" Se6'~',ion 4.102.0g.C, es follows: "In making a similar use determination the following guidelines shall be c°nsidered: Primary ar Predominant Use. Use classifications define the,primary or predaminate activity. For NAIC$ classifications, the primary activity is determined by the prinolpal product er group of produol~ distsJbuted or services rendered. Ancillary or subordinate activP,,les conducted In the furtherance of the primary a~ivity, shall not be considered in determining the classification of use for purpeses of the WDO. Uses Included. The description of certain classifications are amplified by a listing of more sp$offic uses preceded by the term "INCLUDING." Such included uses only serve to illustrate the scope of the NAICS clasSification and are not intended to limit the uses described under the NAICS index number. 0~/03 APPENDIX F # Uses Excluded. Certain uses excluded from a NAICS classification are preceded by the term "EXCLUDING." Site Design Plan showing the following items: a. Standard ~tle blo=k and legend. b! Scale: 1',=20' t° 1'=40'~ !. c. Image Ama: 250' from the perimeter of the subject, property. d. Area iri'square feet of: 1. Subject Property. [Dimensions and area in square feet.] 2. Landscaping. 3, Parking lot 4. Buildings: a. Aggregate gross floor area. b. Per building: exterior dimensions, height & gross floor a~ea, e. Number of parking spaces, inoluding dimensions: t. Standard.. 2. Comi~..ct. 3. Disabliity. 4. BiCYCle.' . f. Residential units: 1, Living units. [Number, net densi~ & typical gross floor ama/unit_] g. Lot coverage by buildings and stru~ums. h. Access ways, walk'ways and on-site b~keway~. .. L Rights of,way, dflveways, and street improvements. j. Fences, trash enclosure, exterior light standards and k. Existing. Landscaping [Area and location.as well as name of plant] I. Exterior lighting.' . Publi~ safety and security plan to assure safety of staff and clients in residence and the~neighborhood as a whole. ~ ' ' · ":-. ' ~. 'Ti / '.; ~ "? ,%'. ~ ~-~ /, ..~...; ...,': .. ,' ., . Traffio generated from the prop°sod seared residential cam ~o~ity, · The number of ataff required to operate the secured.residential care facility, Two (2) sets of serf adhesive labels for each property within the notification area. showing the owner's name, the tax lot number of the ownemhip and the owner's mailing address. Once the above information and materials have been submitted, your application w~ll be deemed ~mplete. After your appli=ation is deemed ~omplete, a facilities m~ting will be scheduled where City staff and the Fire District will meet with you and/or your representatives to ~lisouss your project. If you have any questions regarding this matter, please oontact me at (503) 980-2402. Sinoerely, Naomi Zwerdllng Interim Community Development DireCtor ~,u!emm.Jj. 44~!.~j a!^eO-hOaJ ~dgl:.PO 90-ZZ-lflr Your Family Market 4895 Indian School Road N.E. Phone (503) 393-ROTH Salem, Oregon 97305 FAX (503) 393-4456 FORMAL INTERPRETATION #05-01 Exhibit 5 Council Hearing 1/23/06 --1605 E Lincoln January 23, 2006 Dear Mayor and Members of the City Council: My name is Michael Roth and I represent Roth's Family Markets. Roth's has had a grocery business serving Woodburn at 948 Pacific Avenue since 1967. We are opposed to this change of use at the former memory care facility, for these five reasons: While we understand TeleCare's mission and the need, we think more time needs to be spent finding a home for them completely away from a residential area and a business like a grocery store with male and female employees as young as 16 and customers of all ages. 2. While we are sure TeleCare is an experienced provider, we struggle with the accessibility of a grocery store so close with a large supply of beer and wine. Woodburn's Southeast quadrant, along South Highway 99E, continues to struggle as an area with the reputation of being unsafe and not attracting capital for redevelopment. Once the Telecare facility is functioning, it cannot and will not help with efforts to revitalize this area. This facility will not be a long-term memory care facility, but a revolving door (and I took these next statements off the TeleCare website) for "Some very high risk individuals, up to 1,000 per year". 5. A house with fifteen people may sound like no big deal; but what would keep TeleCare from procuring more adjoining land and housing 30, 60, or more, high-risk patients? In conclusion, please don't let your guard down and change the use from a memory facility for 15 people to (this is also off the TeleCare website) "A program working with some of the most difficult clients, many of whom have been locked in a psychiatric setting for years". Silverton · Woodburn · McMinnville · Lebanon · Independence ° Keizer ° Stayton Salem (Lancaster, Vista, Sunnyslope, West Salem and Hayesville) http://www.telecarecorp.com/docs/204.html 1 of 2 Search Tetec~re E-Newsletter lredell, Yadkin and Surry County Services Telecare Employee Email MENTAL HEALTH CRISIS AND DETOX SERVICES NOW AVAILABLE AT NEW CRISIS RECOVERY CENTER 1N KANNAPOLIS September 29, 2005 - Thursday N~Ws: Press Re/~se~: ~ SEnD TO R FRIErID MENTAL HEALTH CRISIS AND DETOX SERVICES NOW AVAILABLE AT NEW CRISIS RECOVERY CENTER IN KANNAPOLIS CRC Kannapolis Ribbon-CuLLing Kannapolis, NC - Oct. 3, 2005 - Piedmont Behavioral Healthcare (PBH), in cooperation with Telecare Mental Health Services of NC, Inc., opened a facility-based crisis center for the residents of Cabarrus, Davidson, Rowan, Stanly and Union Counties today. "The Crisis Recovery Center at Kannapolis" will provide crisis services to individuals with mental health and substance abuse crises. The center is located at 1309 S. Cannon Blvd in Kannapolis. In a crisis, individuals should call the Piedmont Behavioral Healthcare Access Line at 1-800-939- 5911. "For People in distress or needing immediate help, the crisis center is a place to receive caring and professional support, 24 hours a day, seven days a week," said Dan Coughlin, chief executive officer for PBH. "We are devoting ten beds for substance abuse detoxification and six beds for mental health crisis care. Fortunately, we have an experienced and innovative organization - Telecare - to provide these vital services." "Our partnership with PBH means the community now has important new services and a strong mental health team to serve its needs," said Kathleen Fry, the center's administrator. "We want everyone to know where we are and what we do. We have a talented team of professionals who are anxious to serve the community." The center's staff includes a psychiatrist, RNs, licensed clinical social workers, and others with crisis support experience. According to Fry, the crisis and detox center will provide short-stays - usually from three to six days - for persons 18 years of age and older, who require crisis stabilization, detox, or both. The center will also be able to care for developmentally disabled adults who have a mental health or substance abuse crisis. I~tis expected that thee crisis center will admit nearly 1tO00 consumers a year. According to Fry, anyone is accepted for crisis care, as long as the center is 1/21/2006 8:54 AM http://www.telecarecorp.com/docs/204.html appropriate for his or her needs. All forms of insurance will be accepted, including Medicaid and other state funding sources. As a result of mental health reform legislation passed in 2001, PBH is responsible for managing financial resources and direct services for people with mental health, developmental disability, and substance abuse service needs. These services are provided through a network of contracted Provider Agencies and Licensed Practitioners that are located in Cabarrus, Davidson, Rowan, Stanly and Davidson counties. Telecare, based in Alameda, California is one of the largest providers of mental health services in the country. Telecare works in partnership with local, county, state and other behavioral healthcare organizations to design and provide recovery-focused services for hiah-risk individuals: Telecare is '~'~loyee-and-family-owned with over 2000 employees and more than 60 programs in California, Texas, Oregon, Nebraska, and North Carolina. -END- 2 of 2 http://l O.telecarecorp.com/services/index.cfm?step-~estimonials I of 2 Search Telecare Telecare Em~__loyee Email 1 Programs/Services From our Clients, Families, & Customers "Telecare has been instrumental in bringing p~ograms to the County that are innovative and in assisting the Department when special needs arise. When others say 'it can't be done,' Telecare staff retain their vision. Tel~lgf, alf.~ _~.mrOgrams have a ceDutation for workino~vith some of the most difficult clients, ahv ~f Whom h~ge been in locked psychiatric setting~for year~ and helping-' them to remain in the communist. Telecare staff do n6t]ust give lip service to providing recovery-focused services; staff truly have a commitment to assisting clients in improving their quality of life and meeting their full potential by finding permanent homes, accessing educational opportunities and finding jobs. The Department of Mental Health values Telecare Corporation and the important contribution it makes to our system of care." - James C. Allen, Deputy Director, Los Angeles County Department of Mental Health, Adult Systems of Care, Los Angeles, CA "Our shared values and commitment to high-quality, outcome-oriented, cost-effective care formed the basis for the productive relationship more than 30 years ago. As demand increases for innovative community alternatives to traditional care, Telecare is a partner we work with to problem-solve creative solutions. Their commitment to the recovery of consumers is clear." - Marye Thomas, MD, Director, Behavioral Health Care Services, Alameda County, CA "Our goal at the Center for Health Care Services is to make sure we have the best value and the best provider. Telecare has a national reputation as a niche provider with expertise in serving individuals with serious mental illness. We've been very pleased. They been responsive to our consumers' needs and any concerns that we bring forward. We appreciate that Telecare is data-driven and interested in continuous quality improvement and quality management. They do a good job." - Leon Evans, Executive Director, Center for Health Care Services, Bexar County (San Antonio), TX "I think that Telecare has streamlined the process for the assessment and commitment of mental health consumers in a crisis situation within Ellis County. Telecare has brought resources that assisted in cementing the actual process of the commitments and they have been very responsive to calls. They have also played an important role in the educational process with the hospitals as well as the providers." - Judge Chad Adams, Justice Court Judge, Ellis County "We have found the Mobile Crisis Team very effective and helpful. The response time has improved considerably over the past year. Speaking as a family member/care giver, the Team has been of great help to my son and our family. The Crisis Team members appear to be well trained and professional. Speaking for the members of NAMI Dallas, I thank you for the service you ~, render to the thousands of persons in the NorthSTAR region who suffer from 1/21/2006 http://10.telecarecorp.com/services/index.cfm?step=testimonials mental illness, and their families." - Ed Kuny, President, NAhlI Dallas. '2 think Telecare is one of the best set-ups ! have ever been a part of." - Nary "! really like Telecare. They are the best." - Nelissa "Services are excellent." - Frankie "Telecare has helped me so much. I don't know what I would do without them." - Reynaldo "I have tremendously improved, and staff have talked to me and helped me immensely. Everyone I know wants to get in your program." - Linda "Telecare are my angels. Now I can't wait to get up, take my reeds, and start a new day." - Kenneth Telecare's Notice of Privacy Practices 2 of 2 1/21/2006 8:56 AM FORMAL INTERPRETATION #5~01 Exhibit 3 Council Hearing 1/23/06 1605 E Lincoln THERE IS A POSTER BOARD PRESENTATION STORED IN THE UPSTAIRS VAULT, pERTAINING TO THIS HEARING.