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Minutes - 01/23/2006 COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING 0001 DATE. COUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, JANUARY 23, 2006. CONVENED. The meeting convened at 7:00 p.m. with Mayor Figley presiding. 0010 ROLL CALL. Mayor Councilor Councilor Councilor Councilor Councilor Councilor Figley Bjelland Cox Lonergan McCallum Nichols Sifuentez Present Present Present Present Present Present Present Staff Present: City Administrator Brown, City Attorney Shields, 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, City Recorder Tennant 0042 ANNOUNCEMENTS. A) Mid-year budget review and fiscal year 2006-07 budget work session will be held with the Budget Committee on Monday, January 30, 2006, 7:00 p.m., in the City Hall Council Chambers. Mayor Figley also encouraged citizens interested in serving on the Budget Committee to contact the City Administrator's office for an application since there are currently two vacancies on the Committee. 0094 PRESENTATION: TOURISM - WOODBURN CHAMBER OF COMMERCE. Mayor Figley stated that Executive Director Harville has agreed to postpone his presentation on Tourism until a future meeting due to the length of this agenda. 0127 CHAMBER OF COMMERCE REPORT. Executive Director Nick Harville reminded the Council that the annual Chamber Dinner will be held on January 27th. Additionally, the recent Tourism study brought out that the room tax revenue was down by $17,000 in 2005 however there has been substantial growth in the room tax over the last five years. It was noted that the revenue decrease can be accounted for in a number of ways such as the accounting period used by a particular business not coinciding with December 31. Page 1 - Council Meeting Minutes, January 23,2006 T COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING 0216 CONSENT AGENDA. A) approve Council minutes of January 9,2006; B) accept the Planning Commission minutes of December 8, 2005; C) accept the Recreation & Parks Board draft minutes of January 10, 2006; D) receive the Claims for December 2005; E) receive the Police Department Statistics for December 2005; F) receive the Recreation Services Division Attendance Report for November and December 2005; G) receive the Fall 2005 Recreation Services Revenue Report; H) receive the Aquatic Center Revenue Comparison report; and I) receive the report on the public hearing relating to the proposed sale of property to Habitat for Humanity. City Administrator Brown stated that he had distributed updated copies of the Recreation Services report to the Council just prior to the start of this meeting and this report does include anticipated revenue rather than just what the revenue flow has been within this program. On a future report, staffwill go back and pick-up the revenue information from earlier this fiscal year. Councilor McCallum expressed his appreciation in receiving the recreation program report along with the new format being used to present the information. MCCALLUM/NICHOLS... adopt the consent agenda as presented. The motion passed unanimously. 0300 TABLED BUSINESS: UNION PACIFIC PIPELINE CROSSING AGREEMENT. COXlSIFUENTEZ... remove this item from the table and take it up for consideration under General Business item IIG. The motion passed unanimously. 0360 PUBLIC HEARING: FORMAL INTERPRETATION 05-01 FOR THE LOCATION OF A SECURE RESIDENTIAL CARE FACILITY (1605 E. LINCOLN ROAD). Councilor McCallum stated that in reviewing the materials within the agenda, he has noticed that the applicant is represented by counsel from Davis, Wright, Tremaine in Portland and his wife is an employee of that firm. Therefore, he will declare a conflict of interest and excuse himself from discussion and deliberation. Mayor Figley stated that the Council would proceed with the hearing as if Councilor McCallum was not in attendance. Mayor Figley opened the hearing on Formal Interpretation 05-01 at 7:09 p.m.. Councilor Cox stated that he was on the Planning Commission when this property was originally determined but did not feel that it would disqualify him from participating since, from his understanding, it is a legislative issue. Attorney Shields stated that he has done some thorough research and being on the Planning Commission when the original development was before the Commission and/or Page 2 - Council Meeting Minutes, January 23,2006 ~ COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING Council would not disqualify him from this process. Councilor Bjelland stated that he was also on the Planning Commission when this development was originally considered by the City. Mayor Figley stated that she is quite familiar with the property in question. Councilor Nichols stated that he has previously visited the property. Councilor Sifuentez stated that she knows where the property is located but has not been on site. Mayor Figley also asked if there were any challenges and no one came before the Council to express a challenge. Recorder Tennant read the land use statement required under ORS Chapter 197. 0840 Interim Director Zwerdling stated that Tele-Care Medical Health Services, Inc. and Erik Berkey are co-applicants who have submitted a formal interpretation application requesting Ordinance No. 2227 be interpreted to allow for the use of property located at l60S E. Lincoln Road as a secured residential care facility. In 1998, the Council adopted Ordinance No. 2227 which granted a conditional zone change from single family residential to commercial general and Section 2 of this ordinance stated that it would only allow an elderly group care facility. Staff has requested that a formal interpretation be made by the Council for the purpose of determining if the proposed use of the property is the same use specified by Ordinance No. 2227. Co-applicant Tele-Care Medical Health Services intends to operate a IS-bed mental health care facility licensed by the State of Oregon which would provide temporary and semi-permanent housing for individuals requiring treatment for mental disabilities. Facility staff provides 24-hour supervision of residents who have been placed in the facility by the Psychiatric Security Review Board (PSRB). Interim Director Zwerdling stated that the Section 3 of Ordinance No. 2227 only allowed an elderly group care facility and any change to this conditional zone change requires a zone change process. Additionally, the co-applicants plan on making this a secure facility by installing non-breakable windows, fire pull stations will be equipped with locks or alarm covers, and installation of an 8-foot high chain link fence. Additionally, several of the rooms from the existing building will be converted to office/administration rooms. A change in the facility use also requires a change in the occupancy from SR 1.2 (Alzheimer and Dementia residents) to R-4 for a secured residential care facility. She reiterated that staff is recommending that the Council make the interpretation that the secured residential facility use proposed by the co-applicants is not the same as the elderly group care facility use specified by Ordinance No. 2227. Councilor Cox questioned if the letter presented to the Council from the Oregon Advocacy Center is to be made a part of the record. Interim Director Zwerdling stated that it is to be entered into the record (Exhibit I). Recorder Tennant also stated Pegge McGuire, Executive Director fo the Fair Housing Council of Oregon, submitted a document entitled "Background Information about Fair Housing for Neighborhood Groups" to be entered into the record (Exhibit 2). Page 3 - Council Meeting Minutes, January 23,2006 T COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING 1608 Dean Phillips, attorney from Davis,Wright,Tremaine representing the co-applicants, stated that he would be introducing several individuals to supplement the testimony. He stated that there has been a substantial delay with respect to the approvals for the use of this facility and that Interim Director Zwerdling had accurately stated the issue before the Council which is whether this proposed use is a continuation of a use that was existing on the facility. They feel that there are one or more individuals within the City that do not want the secured residential care facility since they have encountered a number of roadblocks over the last several months even though this is simple question of whether or not it is a continued use. He entered into the record a set of photographs of the facility (Exhibit 3). Kevin McChesney, 3204 NE 15th Ave, Portland, stated that he is the Regional Operations Director for Telecare Mental Health Services of Oregon and their planned use of the building is to make it into a secured residential facility for 15 residents who are currently in the State Hospital and have achieved maximum benefit at that level of care. He stated that this is a typical transition for those individuals and it is their first step towards reintegration into normal community living. A psychiatrist does assessments, prescribes medications, and will do medication management to educate the residents about the medication and why it is necessary for those individuals to take the medication. A RN is also on site 24-hours a day to assist with the administration of medication and to treat minor medical conditions. Other programs they provide include basic skills training, money management, supported choice making to help individuals to make good decisions so that they can live successfully in community settings. He stated that Telecare operates programs in 5 states and, included in those programs, there are about 1,000 locked beds. They are currently operating two facilities in Oregon one of which is located in Gresham and the other facility in southeast Portland. The average age of residents at the southeast Portland facility is 40 which is similar to those who would be coming out of the State Hospital. He stated that the licenses of care issued by the State are the same for the Alzheimer and Dementia program versus the secured residential treatment. Both are programs treating adults with mental illnesses and provide access to community services to help establish or maintain normalcy in the lives of the residents. He stated that the window replacement is a licensing requirement, security feature, and a liability issue. All of the gates and doors are locked with a magnetic lock that is tied into the fire alarm system so that doors will unlock in the event of a fire, otherwise there will be control for ingress and egress. He stated that residents will be sent out into the community with staff for purposes of community re-integration. 2345 Erik Berkey, co-applicant, requested a decision pertaining to future usage of his former Dementia and Alzheimer facility (Countryside Living). The facility was built in 1999 as a l6-bed facility but he had to close the facility in January 2005 due to high maintenance cost and ratio to the number of residents. He had contacted numerous businesses and organizations to see if they would be interested in the building and eventually found Page 4 - Council Meeting Minutes, January 23,2006 - COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING Telecare who was interested in utilizing his building for a secured residential facility. The City's Community Development Director had provided a letter of approval on April 19, 2005 stating that a group care facility use is allowed to continue on the property located at 1605 E. Lincoln Road as long as the use does not cease for a continuous period of six months. On the basis of this approval, he signed a lease in good faith with Telecare but, after signing the lease, there was a change in City personnel and there were a number of postponements by the City resulting in the specified length of time expiring. He stated that the building has been vacant for over a year and is causing him financial hardship. Telecare would like to use his existing building to provide an additional treatment facility in Oregon. Other than changing the windows, there is not structural changes being made. Attorney Phillips stated Telecare has asked that the fence be 8-foot in height rather than 6-foot but they are willing to install a 7-foot fence in compliance with the City code. Mary Claire Buckley, Executive Director of the Psychiatric Security Review Board (PSRB), stated that PSRB assumes jurisdiction over all persons found guilty, except for insanity, of a crime in Oregon. The Board is made up of 5 members - Probation Officer, Psychiatrist, Psychologist, Attorney, and a member ofthe general public. The Board's primary purpose is to protect the public and that is accomplished through the management and treatment of these individuals. Individuals who would be placed in this facility would be placed on a conditional release since they are no longer in need of the level of care provided by the State Hospital. They have undergone years of treatment at Oregon State Hospital and have successfully completed their course of treatment. The Board would issue an evaluation order and submit their exhibit file so that any community mental health agency such as Telecare will know everything about the individual and they will do their own independent assessment before a final decision is made by the Board. Any conditions outlined by the agency are again reviewed by the Board and any additional conditions can be placed on the individual as part of the conditional release. Once the individual is released to a treatment facility, the Board will continue to monitor these individuals. Councilor Lonergan questioned if this type of facility could be found in Marion County since Ms. Buckley had stated that there are currently 320 individuals out on conditional releases. She stated that Marion County Mental Health has a number of foster homes but this is the first secured facility in Marion County. Additionally, there is a tremendous need for this type of facility. Councilor Cox requested clarification on who makes the final decision on whether an individual is accepted into the facility. Ms. Buckley stated that the Board makes the final decision but Telecare can determine whether or not they are willing to accept the State's clients. This type of facility is the first step from the State Hospital and, if an individual is ready to move from this level of care, the individual would then be moved to a different level of care. 3842 Michael Morris, Mental Health Policy Manager for the State office of Mental Health & Page 5 - Council Meeting Minutes, January 23, 2006 ~ TAPE READING COUNCIL MEETING MINUTES JANUARY 23, 2006 Addiction Services, stated that his staff did tour this facility and did provide some feedback to Telecare. The licensing staff was very pleased with the condition of the facility and how close it meets the State's standards. Once a new provider is licensed, they do a 90-day site review and then reviews are done once every 3 years. In regards to the State Hospital, there has been a lot of public attention and this facility is one of the key solutions in addressing overpopulation at the State Hospital for those individuals who do not need to be at the State Hospital. He reiterated that the PSRB is not part of their agency and they continue to remind Telecare of public safety which is why they work very closely with PSRB to make sure that the community safety is addressed when setting up programs for their residents. Bob Joondeph, Executive Director of Oregon Advocacy Center, stated that the letter he had submitted to the Council addressed housing issues for individuals being treated for mental diseases or disorders. Under the Fair Housing Act, discrimination against persons with mental illnesses is prohibited and hoped that the Council would take this federal law into account when deliberating on this issue. He understands that the Council's main consideration is for the citizens of Woodburn but he requested that they also look at offering the most decent care to people who have suffered mental diseases and disorders. Individuals under the jurisdiction ofPSRB have a maximum time period of20 years and then the individual will be released back into the communities. By having adequate supervision, treatment, and step down care, the transition back into the communities will complete the treatment program. Kevin McChesney stated that Telecare assesses each individual as they come into their facility and outings are generally goal oriented rather than just riding in a car. Recreational activities include movies, bowling, and parks and other types of activities that families would normally do on a weekend. Telecare also encourages individuals to participate in volunteer activities. Training related outings include riding a bus, going to a Library, computer training and internet access. If an individual is willing and able to work, Telecare will assist in finding opportunities for individuals to learn job skills for re- integration into normal community lifestyle roles. Mayor Figley questioned if all of the proposed residents of this facility would fall under the PSRB and have done things that would be crimes except for their mental health condition. Mr. McChesney stated that the residents would be under PSRB since they had been guilty of a crime(s) except for insanity. In regards to State licensing, there was a change in the universal building code classification system and SR 2.2 (rather than 1.2) and R 4.0 are the same designation. He also stated that SR 2.2 and R 4.0 have the same building code requirements. Attorney Phillips provided a written presentation for the record (Exhibit 4). He stated that Mr. Berkey did operate a residential care facility between 1999 and 2005. This was also a secured facility treating individuals with mental diseases (Alzheimer's and Dementia). In his opinion, the proposed use of the property is a continued use ofthe Page 6 - Council Meeting Minutes, January 23,2006 r COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING facility that was operated by Mr. Berkey. Ordinance No. 2227 is the applicable ordinance for the use of this site and the critical aspect is that the Council has a zoning ordinance before them that provided for a single use facility. Since the Council had decided in their original deliberations to add the term "elderly" to the group care facility, a zoning standard was adopted that is, in essence, unenforceable because it provides no guidance to the applicants as to what it can do to comply with the facility. There is no definition of the term elderly and suggested that the Council take this into consideration during their deliberations. Secondly, the record provided as a basis for the staff report is problematic as well in that it infers that the facility should not be used for people with mental illness and suggested that it nothing more than discrimination on the basis of a mental deficiency. He urged the Council to make an interpretation of the ordinance that it is a continuation of the use of the property because it is the same use that was made of the initial facility that being a residential treatment facility for people with mental disease. He stated that there is no change to the original site plan and they will continue to object to the staff recommending imposition of criteria as if this was a new facility. The issues about the windows, office space, and alarm are building code issues and not zoning issues. Nor is there anything in the record that would require a specific State license for operating the facility. The record does indicate that it has to be for an elderly group care facility but it does not provide for a definition of elderly. In regards to the fence, the 7- foot fence is a requirement within the City's zoning code and they would agree to the installation of a 7-foot fence. Lastly, their initial application in April 2005 requested the Community Development Director's interpretation under the WDO as to whether or not this use was an approved use. Director Mulder responded with a letter dated Aprill9, 2005 indicating that the proposed used as proposed by Telecare was a continued use if it would be continuous in a period of six months. However, due to the City's process, they have been unable to continue the use. After April 19, 2005, Mr. Berkey and Telecare entered into a lease on May 5,2005 in good faith reliance on the letter from Director Mulder. On May 19, 2005, they received a letter from Director Mulder changing his mind and informing them that he would be submitting the interpretation to the Council. He stated that the standards and criteria within the staff report are for a brand new building and, in this case, it is use of an existing facility. This facility will provide a benefit to the property owner, Telecare, and the State of Oregon for those individuals who need this type of treatment in a secured facility environment. The primary concern of the PSRB is protection of the public and before individuals can be released to this type of facility, they undergo a tremendous amount of screening to determine if they can be placed into a community. Telecare also has the ability to accept or deny an individual proposed to be placed in their facility. He requested that the Council carefully consider this decision since they are providing an opportunity to correct what they think is a decision that is without justification either in fact or justification in the law. He also reiterated his opinion that this is a continued use of a treatment facility for individuals involved in a mental disease or defect. Page 7 - Council Meeting Minutes, January 23,2006 ~ COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING 0196 Councilor Lonergan questioned how many neighbors showed up for the neighborhood meeting. Mr. McChesney stated that there were four neighbors representing 3 households at the meeting. Councilor Lonergan also questioned if the psychiatrist was a full-time staff member. Mr. McChesney stated that Telecare has a psychiatrist under contract who will work 10 hours per week at this facility and additional hours at Telecare's other two facilities in the Portland area. When this individual is on vacation, they have another psychiatrist who takes his place. Mayor Figley questioned ifthe Telecare facilities in Portland serve the same type of population or do those individuals have other mental health issues. Mr. McChesney stated that they do get some people that have been under PSRB jurisdiction but most ofthe individuals are civilly committed to the care of the Office of Mental Health and Addiction Services for a period of 180 days. 0421 Pegge McGuire, Executive Director of Fair Housing Council of Oregon, stated that she had submitted informational material to the Council on fair housing issues relating to disability to hopefully clarify issues relating to protected classes. She stated that the Fair Housing Council is a private non-profit Fair Housing organization founded in 1990 with their primary work in education, outreach, and enforcement related activities around housing discrimination issues. She stated that this facility was previously used for people with disabilities and the applicant wants to continue to use it for people with a different set of disabilities. Those people are protected under the fair housing laws and to treat this group of people with different disabilities differently is, in their opinion, a fair housing violation. Even though the Council knows about discrimination, sometimes individuals do not understand that with disability discrimination there is a affirmative obligation for the decision makers to remove barriers that exist for people. She urged the Council to approve the application for the facility. 0652 Inez Berkey, 17575 Landura Ct., Hubbard, shared some experiences she had in growing up with several family members that had mental illnesses. There were no residential facilities available during those years and follow-up care minimal. She felt that there are many families within Woodburn are at a loss as to what to do with family members that are mentally disabled. This type of facility will provide individuals with professional help and will provide individuals with a safe place to live. She urged the Council to support the application and thanked Telecare for their willingness to help the mentally ill. Jack Berkey, 17575 Landura Ct., Hubbard, stated that he had witnessed a lot of what his wife had shared with the Council and knows that there is a need for a facility to provide residential treatment. He also stated that he was supporting his son Erik since the facility has been vacant for sometime. The facility is very nice and a plus for the City. Rod Calkins, Mental Health Director for the Marion County Health Department, stated that he is concerned with assuring the well-being and appropriate treatment of individuals with mental illness. Their program goal is to assist people to reach their goals in terms of Page 8 - Council Meeting Minutes, January 23,2006 l' COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING recovery. Factors for recovery include medication, community support, and stable housing. Rather than an abrupt transition without any supports, a community based program such as the one proposed by Telecare will provide an opportunity for individuals with mental illness to learn and practice the skills that they will need for successful transition back into the community. The program proposed by Telecare represents sound treatment and an opportunity for individuals to improve their lives. He urged the Council to support their proposal. 1162 Yvonne Rice, 3815 Dakota Rd SE, Salem, stated that she has been diagnosed with a mental illness for many years and have been hospitalized many times over a number of years in various types of institutions. She felt that the secured residential treatment facility will offer other individuals a chance for lasting change. She had stayed in secured residential treatment facility for approximately 180 days and during that time she was given the time, safety, structure, and practice in the community to move forward and lead a productive life. It is her belief that this proposed facility could offer the mentally ill the chance to become people again. Matt Kennedy, 9790 SW Nimbus, Beaverton, stated that he served as Mr. Berkey's agent on this property. He stated that when Mr. Berkey operated the facility, dementia was not age specific. Mr. Berkey ran a business at the facility which benefitted the community over the last five years. City staff had provided Mr. Berkey with a written decision to allow continuation of the use but then the decision was changed at a later date. The building costs Mr. Berkey approximately $8,000 for every month the building is vacant and feels that this process and the hurdles that have been placed on Mr. Berkey have been unjust. 1460 Molly Gorger, 7615 Chestnut, Tigard, stated that she would like the Council to seriously consider, and approve, this application for a secured home for patients leaving the State Hospital. At this facility, they will be able to begin rebuilding their lives and put them a step closer for personal responsibility and normal living circumstances. With medication, education, and learning effective management of their illnesses will provide most of these individuals the ability to return to useful work, be productive, and regain their life. More homes both secured and partially secured are needed for these individuals so that they can move on and rebuild their lives with their disability. She stated that she has a son under the PSRB and that she is thankful for the PSRB because if there is ever a difficulty the PSRB will take care of it. Marilyn Birodes, 1560 E. Lincoln Rd., Woodburn, stated that she is not opposed to this facility but does live across the street. She wanted to go onto the record that when the transitional outings do occur that the individuals will be supervised. She had attended the neighborhood meeting and it was understood that individuals could go out on their own once they reach a certain point. Even though it is mental illness, most of the individuals will have a criminal background and she wants to be protected. Mary Reitan, Administrator of the Countryside facility in Canby and former Administrator ofthe Woodburn facility, stated that residents went on daily supervised Page 9 - Council Meeting Minutes, January 23, 2006 ~ COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING visits to various locations in the area and they never had any issues with the businesses. These visits provided the residents with an opportunity to experience life by getting out into a variety of social settings. She urged the Council to support the application for the proposed facility. The Council took a short recess from 9:02 p.m until 9:07 p.m. 1883 Michael Roth, representing Roth's Family Market, stated that their grocery store is located at 948 N. Pacific Highway and has served Woodburn since 1967. Their property shares the property line with the applicant and, in 1998, Roth's did support the zone change so that the facility for Alzheimer care could be built. In 2006, they were notified that the use would be changed and they do not feel that the proposed use of the facility would be a compatible neighbor. They oppose the change of use for the following reasons: 1) more time needs to be taken to find a home for these individuals that is completely away from a residential area and a business like a grocery store; 2) the grocery store has a large supply of beer and wine; 3) the southeast quadrant of Woodburn along Highway 99E continues to struggle as an area with a reputation of being unsafe and not attracting capital for re-development and this type of facility will not help with efforts to revitalize this area; and 4) even though some people's hardships will potentially be ending and a whole new group of people' s hardships could be beginning. He stated that this facility will be a revolving door for some potentially high risk individuals and he urged the Council not to approve the proposed facility. He also submitted a letter for the record (Exhibit 5). During rebuttal, Attorney Phillips requested that Mary Claire Buckley address the issue of alcohol that might be available at Roth's grocery store. Ms. Buckley stated that PSRB has absolute prohibition against the use of alcohol and non-prescribed drugs in every conditional release order. It is true that a number of their clients are duly diagnosed, however these individuals have received treatment and it has been determined that it has been addressed and will continue to be addressed when they live in facilities such as Telecare. PSRB also requires that individuals submit to random urine analysis to assure that they are not using alcohol or drugs while on conditional release. Councilor Bjelland questioned the age range of individuals conditionally released. Ms. Buckley stated that the average age of their clients is 42 and this program would be targeted for this age or above. They do have clients that are younger in age but they also have other programs available that deal more specifically with younger clients. In regards to supervision, PSRB's primary concern is to protect the public and if there is any concern that any individual poses a danger to the community then they would not be released from the State Hospital. This would be a locked facility and when the individuals go out into the community they will be accompanied by Telecare staff. She Page 10 - Council Meeting Minutes, January 23,2006 ~ COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING stated that she understood the concerns but did not think it was warranted given the monitoring and supervision that is maintained on these individuals. She reiterated that movement from the State Hospital to a residential facility is a voluntary step but they have to agree to conditions and, if they do not abide by one or more of the conditions, then they immediately return to the State Hospital. Councilor Lonergan questioned if a resident could get out on their own to go to a neighborhood market to purchase alcohol. Attorney Phillips stated that this is a secured facility but there still be an opportunity for an individual to break out of the facility. In other facilities operated by Telecare, there has not been an instance of an individual breaking out of a facility. If it were to happen, notification is made immediately to PSRB and to the Police Department. Once the individual has been located and brought back to the facility, PSRB will make the decision as to whether or not the individual is to be returned to the State Hospital. Mr. McChesney stated that some ofTelecare's facilities do allow voluntary commitments, however, it is highly unlikely that this facility will have any voluntary commitments. They have been working with PSRB and the State and since there is a high demand for this type of facility, it is anticipated that all of the individuals in this facility will be under PSRB jurisdiction which is an involuntary commitment pursuant to conditional release under a court order. Mayor Figley declared the public hearing closed at 9:22 p.m.. 2909 The Mayor stated that the main issue before the Council is what does Section 3 of Ordinance No. 2227 really mean and whether or not the proposed facility is considered to be the same as the original use. Councilor Nichols stated that the federal government has lowered the age from 55 to 50 and feels that it is difficult to define elderly as a certain age unless it is standardized otherwise discrimination could be involved. Based on the testimony at this hearing, he felt that proposed facility is a continued use of the property. Councilor Cox stated that he agreed with the proponents on most of the comments and this program is necessary. He stated that most of the arguments he heard at this meeting seem to be arguments that would be addressed as to why the zone should be changed. The question is whether or not this is a proposed use that is an elderly group care facility. He stated that it is a care facility but did not feel that it was an elderly care facility. He did not feel that he was being prejudiced or violating the rights ofthe disabled by making these comments. If a proper application is made to the City, it will be addressed on its merits. He stated that he was on the Planning Commission when this was originally discussed, has re-read the minutes, and, if the term elderly is to vague, the record is very clear that it would be used for a Class 1 residential care facility licensed by the State. He stated that Class 1 is a high standard residential care facility for individuals with Alzheimer and Dementia. He reiterated that the zone change approach is a more appropriate avenue for the property owner to take to either expand the condition or have Page 11 - Council Meeting Minutes, January 23,2006 " COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING the condition removed completely. 3621 Attorney Shields reviewed Section 3 of Ordinance No. 2227 which stated that the zone change would only allow an elderly group care facility and approval of any other use would require a zone change process. If an interpretation is made that the proposed use is a continuation of the same use granted in 1998, then it will be a permitted use. However, is an interpretation is that it is not the same use, then the applicant can apply for a zone change. Councilor Bjelland stated that the facility was used for Alzheimer and Dementia patients, however, not all Alzheimer and Dementia patients are elderly. This facility had mental health patients in residence provided that Alzheimer and Dementia is a mental health diagnosis. In his opinion, this is a gray issue before the Council and he is having difficulty in trying to decide how to resolve the issue. An excellent case has been made for the need for this type of facility and personally feels that the facility would serve that purpose well, however, he is trying to reconcile from a legal and land use planning standpoint what is the appropriate course of action to take. The record from 1998 brought up a number of issues and eventually the use was for Alzheimer and Dementia facility. He stated that the distinction between similar use and same use would help him to decide how to vote on this matter. Mayor Figley stated that she shared the concerns expressed by Councilor Bjelland. Her recollection was that the presentation was more toward assisted living and concerns about commercial encroachment and incompatibility with single family residences were an issue. Based on what she heard at this hearing and if the Council was in the middle of a zone change, she would find the testimony in favor of the facility to be highly persuasive. She questioned if the proposed use is the same use granted in 1998. 4463 Councilor Sifuentez expressed her full support of the program but questioned ifit should be a change in the ordinance. Councilor Cox questioned if there is any standard stated in the ordinance such as being the same or of no significant difference which would help the Council to make an interpretation. Attorney Shields stated that there is nothing in the ordinance that would specifically address a standard. In this case, the condition is specific to the zone which is not something done by the Council. He stated that it is clear in Oregon that the law defers to the Council's interpretation oftheir own enactment. 4733 Councilor Cox stated that if this was an application that would be approved ifit was before the Council in the proper way and if the Council has the authority under the ordinance, then maybe the Council should allow the proposed use at the facility. Councilor Bjelland felt that there is ambiguity in this situation since the words in Ordinance No. 2227 do not match up with what actually existed at the facility over the years and an argument can be made that it is a similar use. If the Council can make a decision on similar use, then he would be in support of this application. Attorney Shields stated that Ordinance No. 2227 uses the similar use determination Page 12 - Council Meeting Minutes, January 23,2006 ~ COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING phrase but it does not give sufficient guidance on how to apply it. Councilor Bjelland stated that if the previous use was strictly an elderly care facility without any other elements such as mental health, then, even though he would be supportive of a zone change, he would not feel that the Council would have the legal justification under this provision of the Ordinance to make this interpretation. Councilor Lonergan stated that the State Licensing Division has testified that there is not a difference in the license Councilor Cox questioned Attorney Shields if, in his opinion, the Council has the authority to say that a secure residential care facility is sufficiently similar to an elderly group care facility. Attorney Shields expressed his opinion that the Council does have that authority. In regards to the interpretation, the Council would need to make a finding that it is similar and that the conditional zoning that was imposed by the prior decision is complied with by this proposed facility. BJELLAND/SIFUENTEZ... make the interpretation as described by Attorney Shields and support the applicant's position. Attorney Shields stated that staff will prepare an ordinance with findings supporting the Council's decision and it will be presented at the next meeting. On roll call vote, the motion passed unanimously (5-0). Councilor McCallum returned to his Council seat. 5575 COUNCIL BILL NO. 2606 - ORDINANCE AMENDING ORDINANCE NO. 2055 (BUSINESS REGISTRATION ORDINANCE) AND SETTING AN EFFECTIVE DATE. Mayor Figley stated that she had discussed with Administrator Brown the possibility of deferring debate on this ordinance until such time as an ordinance is drafted that would combine the contents of the original ordinance plus the new amendments. Administrator Brown stated that he had spoken with Councilor Cox earlier today and there is additional work that can be done on this ordinance to both update it and eliminate vague language and some internal inconsistencies. Staff would like to make these updates over the next month and the provide the draft to the group that has been working on this issue before it is presented to the Council for consideration. Councilor Cox stated that time is of the essence and suggested that it be brought back to the Council by the first meeting in February. Administrator Brown stated that staffwill work towards that meeting date but it should be completed by the last meeting in February. Councilor Lonergan questioned the exemption status in the current ordinance to any business that pays a franchise tax or transient occupancy tax since other cities charge both the tax and the registration fee. It was noted that the franchise taxes being paid takes care of any others that the City may Page 13 - Council Meeting Minutes, January 23,2006 T COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING charge. Councilor McCallum stated for the record that his wife is a business owner in W oodbum, and for the most part, her business is done outside of the City and she does pay for a business license. He would be taking part in this issue when it does come before the Council. Councilor Bjelland stated that one of the issues brought up at the last meeting related to a definition of home business and he questioned if the draft ordinance would incorporate that definition. Administrator Brown stated that staff would be looking at the W oodbum Development Ordinance (WDO) language and language in business registration ordinances from other jurisdictions to incorporate some language that would define a home business. 6238 COUNCIL BILL NO. 2607 - RESOLUTION ENTERING INTO WOODBURN INTERCHANGE AGREEMENT NO. 22933 WITH THE STATE OF OREGON. Councilor Sifuentez introduced Council Bill No. 2607. Recorder Tennant read the bill by title only since there were no objections from the Council. Councilor Cox stated that the agreement is consistent with what has been discussed in principle and he questioned if there is a need to amend some ordinances to enforce this interchange agreement. Public Works Director Rohman stated that the portion dealing with the Interchange Overlay Management District is included in the WDO. The main purpose of this agreement is to layout ground rules on how it will be coordinated and administered between the City and Oregon Department of Transportation (ODOT). On roll call vote for final passage, the bill passed unanimously. Mayor Figley declared Council Bill 2607 duly passed. 6560 COUNCIL BILL NO. 2608 - RESOLUTION REVISING GUIDELINES. PROCEDURES. AND PROCESS FOR OBTAINING CITY TOURISM AND ECONOMIC DEVELOPMENT GRANT FUNDS PURSUANT TO ORDINANCE NO. 2057 (TRANSIENT OCCUPANCY TAX ORDINANCE). Council Bill No. 2608 was introduced by Councilor Sifuentez. The bill was read by title only since there were no objections from the Council. Councilor McCallum expressed his disappointment that this grant was not a competitive process as it had been in the past but he understands the reasons why for a one-time grant award. He reminded the Chamber that this grant is only valid for one year. Additionally, the City seems to be paying the bills on the Tourism Center and he hoped that other communities will join in and help with the financial aspect rather than it being placed as a burden on the City. On roll call vote the motion passed unanimously. Mayor Figley declared Council Bill 2608 duly passed. Page 14 - Council Meeting Minutes, January 23, 2006 T COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING Tape 3 0010 APPEAL OF ZONING ADJUSTMENT CASE FILE NO. 05-02 LOCATED AT 120 SMITH DRIVE. Mayor Figley stated that some additional testimony was filed which has been distributed to the Council in the agenda packet. BJELLANDIMCCALLUM.... concur with the Community Development Director's decision of approval of Zoning Adjustment Case file no. 05-02 and insttuct staff to prepare and ordinance to substantiate the decision. Councilor Cox stated that he had read the materially carefully and feels strongly that the garage is not an extension of the existing building. On roll call vote, the motion passed unanimously. 0180 EASEMENT EXTINGUISHMENT AND MODIFICATION (RELOCATION OF EASEMENT) The easements have been conveyed to the City by Premier Development, LLC, in conjunction with Boones Ferry Crossing Phase I development. BJELLAND/COX... 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. The motion passed unanimously. 0206 OLCC LIOUOR LICENSE - BEAR CREEK STORES. INC. Staff recommended the approval of a off-premise liquor license submitted by Bear Creek Stores Inc, trade name Harry & David, located within the Woodburn Company Stores shopping complex. BJELLAND/SIFUENTEZ... recommend to OLCC approval of the liquor license application for Bear Creek Stores, Inc., trade name Harry & David. The motion passed 5- 1 with Councilor Nichols voting nay. 0240 UNION PACIFIC RAILROAD PIPLELINE CROSSING AGREEMENT. Mayor Figley felt that this issue has taken quite some time and it is now time to make a decision on the proposed agreement. Councilor Cox agreed that it was time to make a decision and even though staff is very much in favor of moving ahead as proposed, he still did not feel that the City should be entering into a license agreement. NICHLOLS/SIFUENTEZ... authorize the City Administrator to execute the pipeline crossing agreement with the Union Pacific Railroad as presented with the understanding that consttuction of a safety manhole may be added in the agreement. The motion passed 5-1 with Councilor Cox voting nay. Page 15 - Council Meeting Minutes, January 23,2006 .... COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING 0369 PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS. A) Planning Commission's approval of Design Review 05-12 and Variance 05-19 located at 515 S. Settlemier (Water Wellhouse); B) Planning Commission's approval of Partition 05-07 and Variance 05-20 located at 2701 N. Front Street; and C) Community Development Director's approval of partition 05-06 located at 1791 W. Lincoln. No action was taken to bring these land use actions up before the Council for review. 0477 CITY ADMINISTRATOR'S REPORT. Administrator Brown reminded the Council that they had received a presentation from ODOT and their consulting traffic engineers who had developed some design work on improvements to Highway 99E. Within our City, it would have placed some pedestrian islands along Highway 99E in those areas where there are no crosswalks or signal lights, plus there was some reconfiguration of the Young Street intersection. At the time, the Council did not seem overly supportive the pedestrian islands and there were some issues regarding the need to eliminate and sign. The Council was in favor of the Young Street interchange improvements and offered some operational concerns for the consultants to consider. Following the presentation, the consultants did make contact with the business owners along Highway 99E and, as a result, the business owners were not in favor of the pedestrian islands. Administrator Brown stated that he has further discussed this issue with the consultants and suggested that they should make the improvement if they feel it should be done rather than putting the decision back onto the Council. The consultants have requested that he ask the Council to see if the Council would like to hear from ODOT again on the proposed improvements. Mayor Figley stated that the Council had not made any decision but felt that they had politely communicated the fact that they were not sure if the pedestrian islands would be acceptable. Councilor Bjelland stated that he would like to hear what ODOT's final proposal is and then give some feedback. Administrator Brown stated that the improvements are proposed as a result of a study involving pedestrian and motor vehicle accidents on a lengthy stretch of Highway 99E. The piece they are looking at right now is within the City and ODOT has indicated that they do have other things they can spend the money on so they are not interested in mandating the improvement if the community does not want the islands. ODOT does believe that the Young Street intersection needs to be improved and they will be making that improvement. His impression is that ifhe tells ODOT that the Council is not that concerned about listening to another presentation and satisfied that ODOT has done their diligence in the community, then ODOT will not make the pedestrian improvements. Councilor McCallum stated that money saved by not installing the pedestrian islands could be used to improve lighting along Highway 99E, install metal strips high off of the Page 16 - Council Meeting Minutes, January 23,2006 COUNCIL MEETING MINUTES JANUARY 23, 2006 TAPE READING ground on the existing islands and similar improvements which would be just as important in reducing accidents along that stretch of roadway within the City. It was the consensus of the Council to have ODOT come back to the Council if they are going to do something along Highway 99E other than the Young Street improvement. Attorney Shields referred to the Council agenda item on Boones Crossing and stated that the City previously vacated easements but, after doing some research, found that the vacation was not necessary as long as the public does not hold an interest such as in a roadway. The extinguishment and modification agreement accomplishes the same objective and saves all parties time and money. 0970 MAYOR AND COUNCIL REPORTS. Councilor McCallum congratulated the Mayor on her presentation of the "State of the City" report at the Chamber Forum. He also reminded the Council and public of the Relay for Life Kickoff meeting on February 2nd, 7:00 p.m., at the Bunker. Mayor Figley stated that she enjoyed giving the "State of the City" address because it is her opportunity to share more positive than negative issues with the community. In regards to the negative issues, she felt that citizens can treat those as challenges to meet in the future. Councilor Bjelland stated that he had received a letter from Congresswoman Darlene Hooley who is requesting submittal of proposals for earmarked funds. The City Administrator was successful in the past for obtaining some earmarked funds for the 1-5 interchange project and he hoped staffwill continue to look at projects and submit proposals if they meet the criteria. Administrator Brown stated that he had sent the letter to staff requesting that they develop of list of projects which he can then put together in proposal form. 1156 ADJOURNMENT. MCCALLUMlSIFUENTEZ... meeting be adjourned. The The meeting adjourned at 10:27 p.m.. ATTEST fY/'::f:t.~ Mary Te t, Recorder City of Woodburn, Oregon Page 17 - Council Meeting Minutes, January 23,2006 "