November 23, 2020 Agenda Packet
E RIC S WENSON,M AYOR
D EBBIE C ABRALES,C OUNCILOR W ARD 1
C ITY OF W OODBURN
L ISA E LLSWORTH,C OUNCILOR W ARD II
R OBERT C ARNEY,C OUNCILOR W ARD III
C ITY C OUNCIL A GENDA
S HARON S CHAUB,C OUNCILOR W ARD IV
M ARY B ETH C ORNWELL,C OUNCILOR W ARD V
N OVEMBER 23,2020–7:00 P.M.
E RIC M ORRIS,C OUNCILOR W ARD VI
VIAVIDEOCONFERENCING
1.CALL TO ORDER AND FLAG SALUTE
2.ROLL CALL
3.ANNOUNCEMENTS AND APPOINTMENTS
Announcements:
A.CityHalland the Librarywill be closed November 26and 27for the
Thanksgiving Holiday.
Transit Services will be closed on November 26but will be open normal
business hours on Friday, November 27.
Appointments:
None.
4.COMMUNITY/GOVERNMENT ORGANIZATIONS
None.
5.PROCLAMATIONS/PRESENTATIONS
Proclamations:
None.
Presentations:
None.
6.COMMUNICATIONS
None.
This facility is ADA accessible. If you need special accommodation, please contact the City Recorder at
503-980-6318 or Statewide Toll Free Relay (800) 735-1232, at least 48 hours prior to this meeting.
Si usted necesita asistencia especial, comuníquese al 503-980-6322 o a la línea telefónica gratuita, (800)
735-1232, con un mínimo de 48 horas, antes de la reunión.
.
**Habrá intérpretes disponibles para aquéllas personas que no hablan Inglés, previo acuerdo
Comuníquese al (503) 980-6322.**
November 23, 2020Council Agenda Page i
7.BUSINESS FROM THE PUBLIC–This allows the public to introduce items for Council
consideration not already scheduled on the agenda.
8.CONSENT AGENDA–Items listed on the consent agenda are considered routine
and may be adopted by one motion. Any item may be removed for discussion
at the request of a Council member.
A.Woodburn City Council minutes ofNovember 9, 20201
Recommended Action: Approve the minutes.
B.Purchase and Acceptance of a Statutory Warranty Deed for Right-4
of-Way Dedication at 1251 W. Hayes Street, Woodburn, OR 97071
(Tax Lot 051W07CC02200)
Recommended Action:Authorize the purchase and acceptance of
a Right-of-Way dedication granted by Pavel Anfilofieff, property
owner of the property located at 1251 W. Hayes Street, Woodburn,
OR 97071 (Tax Lot 051W07CC02200).
C.IGA with the City of Silverton10
Recommended Action:Authorize the City Administrator to sign into
an Intergovernmental agreement with the City of Silverton.
9.TABLED BUSINESS
None.
10.PUBLIC HEARINGS
None.
11.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 portion of the Council’s agenda. Comment time may be limited
by Mayoral prerogative.
A.Council Bill No. 3137 –An Ordinance Providing for the Management of 17
Utility Services Within the City and Access to and use of the City's
Rights-of-Way
Recommended Action:Second reading required because there was
not a unanimous vote at the November 9, 2020 City Council Meeting.
B.Council Bill No. 3138-A Resolution Setting the Right-of-Way Utility 48
License and Usage Fee Rates within the City of Woodburn
Recommended Action:Adopt a Resolution setting ROW utility
license and usage fee rates in the City.
November 23,2020Council Agenda Page ii
12.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.
A.Call-Up Briefing: Planning Commission approval of a Design Review 51
and Exception to Street Right-of-Way and Improvement Requirements
(“Street Exception”) application package for Woodburn Urgent Care
at 2902 Tom Tennant Drive (DR 2020-06 & EXCP 2020-07)
Recommended Action:Staff recommends no action and briefs the
Council on this item pursuant to Woodburn Development Ordinance
(WDO) Section 4.02.02. The Council may call up this item for review if
desired and, by majority vote, initiate a review of this decision.
B.Call-Up Briefing: Planning Commission Approval of Conditional Use, 53
Design Review, Property Line Adjustment (as lot consolidation), Street
Exception, and Variance Applications for Templeton Apartments on
five lots at 1430 E. Cleveland Street (CU 2020-01, DR 2020-02, EXCP
2020-04, PLA 2020-02, & VAR 2020-02)
Recommended Action:Staff recommends no action and briefs the
Council on this item pursuant to Woodburn Development Ordinance
(WDO)Section 4.02.02. (The Council may call up this item for review if
desired and, by majority vote, initiate a review of this Commission
decision.)
13.CITY ADMINISTRATOR’S REPORT
14.MAYOR AND COUNCIL REPORTS
15.EXECUTIVE SESSION
None.
16.ADJOURNMENT
COUNCIL GOALS 2019-2021
Thematic Goals
1.Create an inclusive environment where residents participate and are engaged in the community (that is vibrant, safe
and active).
2.Promote an environment that encourages sustainable economic health maximizing our geographic, workforce,
cultural and community assets.
Strategic Goals
3.Create an inclusive environment where Woodburn residents want to participate and are engaged in the community.
November 23,2020Council Agenda Page iii
4.Develop innovative funding sources to help support the completion of capital improvement projects.
5.Grow and support strategic partnerships for economic health.
6.Explore the development of a non-profit consolidation facility.
7.Improve Communication and Coordination with School District on matters of mutual interest.
8.Completion of the First Street remodel.
9.Completion of Phase 1 & 2 of the Community Center Project including the formation of an ad hoc steering committee
to review and recommend design.
10.Creation of the Dick Jennings Community Leadership Academy.
11.Develop a strategy to limit PERS liability.
12.Establishment of a Woodburn 20 year community-visioning plan.
November 23,2020Council Agenda Page iv
COUNCIL MEETING MINUTES
NOVEMBER 9, 2020
DATECOUNCILCHAMBERS,CITY HALL, CITY OF WOODBURN, COUNTY OF
MARION, STATE OF OREGON, NOVEMBER 9, 2020
CONVENEDThe meeting convened at 7:00 p.m. with Mayor Swenson presiding.
ROLL CALL
Mayor Swenson Present
Councilor CarneyPresent -via video conferencing
Councilor Cornwell Present -via video conferencing
Councilor SchaubPresent -via video conferencing
Councilor MorrisAbsent
Councilor EllsworthPresent -via video conferencing
Councilor Cabrales Present -via video conferencing
Staff Present(via video conferencing):City Administrator Derickson,City Attorney Shields,
Assistant City Administrator Row, Economic Development Director Johnk, Police Chief Ferraris,
Finance Director Turley,Deputy Police Chief Pilcher, Assistant City Attorney Granum, Human
Resources Director Gregg, Engineering Director Liljequist, Parks and Recreation Manager
Cuomo, City Recorder Pierson
PROCLAMATION
The Mayor read a proclamation declaring November 2020 as Small Business Month.
PRESENTATIONS
A.Community Center Update –Chris Roberts and Jim Kavalege with Opsis Architecture provided
an update on the Community Center which included information and costs on a base plan as
well as a the full build out plan.
B.Mary Tennant Award – City Administrator Derickson awarded City of Woodburn employees
Gerald Leimbach and Rose Reeder the Mary Tennant Award for Excellence in Public Service.
C.Covid-19 Update –Parks and Recreation Manager Cuomo provided an update on Covid-19 in
Woodburn and community offerings and programs.Economic Development Director Johnk
provided an update on the business assistance program and Community Relations Manager
Guerrero provided an update on the mortgage assistance program.
CONSENT AGENDA
A.Woodburn City Council minutes of October 12, 2020,
B.Woodburn City Council Executive Session minutes of October 12, 2020,
C.Acceptance of a Public Utility Easement at 691 N. First Street, Woodburn, OR 97071 (Tax Lot
051W07DC04500),
D.Crime Statistics through September 2020,
E.Building Activity for October 2020.
Carney/Schaub… adopt the Consent Agenda. The motion passed unanimously.
COUNCIL BILL NO. 3137 –AN ORDINANCE PROVIDING FOR THE MANAGEMENT
OF UTILITY SERVICES WITHIN THE CITY AND ACCESS TO AND USE OF THE
CITY'S RIGHTS-OF-WAY
Carneyintroduced Council Bill No. 3137. City Recorder Pierson read the bill twice by title only
since there were no objections from the Council.Assistant City Attorney Granum provided a staff
report. Kim Allen provided comments on behalf of Verizon in opposition of the proposed Utility
Services Ordinance. Ken Lyons provided comments on behalf of AT & T in opposition of the
Page 1 - Council Meeting Minutes,November 9, 2020
1
COUNCIL MEETING MINUTES
NOVEMBER 9, 2020
proposed Utility Services Ordinance.On roll call vote for final passage, the vote was 3 to 2 with
Councilor Ellsworth and Councilor Cornwell voting no. The Mayor stated that since the ordinance
did not pass unanimously it will be brought back at the next meeting for a second reading and vote.
The Mayor noted that item 11B will be deferred to the next meeting.
COUNCIL BILL NO. 3140 - A RESOLUTION ADOPTING THE UPDATED WOODBURN
TRANSIT SYSTEM TITLE VI PROGRAM
Carney introduced Council Bill No. 3140. City Recorder Pierson read the bill by title only since
there were no objections from the Council. Assistant City Administrator Row provided a staff
report. On roll call vote for final passage, the bill passed unanimously. Mayor Swenson declared
Council Bill No. 3140 duly passed.
DESIGN REVIEW DR 2019-05 ALLISON WAY APARTMENTS FINAL DECISION
Community Development Director Kerr provided a staff report.Carney/Cabrales… authorize
the mayor to sign the attached final land use decision document.The motionpassed unanimously.
MEMORANDUM OF UNDERSTANDING (MOU) WITH PORTLAND GENERAL
ELECTRIC (PGE)
Carney/Ellsworth…authorize the City Administrator to sign the enclosed MOU with PGE. The
motion passed unanimously.
CALL-UP BRIEFING: PLANNING COMMISSION APPROVAL OF A CONDITIONAL
USE AND VARIANCE APPLICATION PACKAGE FOR AT&T CELL TOWER AT 1414
COMMERCE WAY (CU 2020-02 & VAR 2020-07)
The Council declined to call this item up.
CALL-UP BRIEFING: PLANNING COMMISSION APPROVAL OF A DESIGN
REVIEW AND PROPERTY LINE ADJUSTMENT APPLICATION PACKAGE FOR LA
MORENITA TORTILLA BAKERY AT 2230 & 2400 N. PACIFIC HWY (DR 2020-05 &
PLA 2020-03)
The Council declined to call this item up.
CALL-UP BRIEFING: PLANNING COMMISSION APPROVAL OF A MODIFICATION
TO CONDITIONS OF APPROVALFOR MID VALLEY COMMUNITY CHURCH AT 591
GATCH STREET (MOC 2020-01)
The Council declined to call this item up.
CITY ADMINISTRATOR’S REPORT
The City Administrator reported the following:
Police Chief Ferraris has let the City know that he plans on retiring before the end of
February 2021.
Police Chief Ferraris spoke on Measure 110 which passed in the last election.
League of Oregon Cities is providing training in the first two weeks of December for new
public officials or those who would like a refresher.
Asked if the City Council and Mayor would be on board with meeting on November 23 to
bring back the utility ordinance and there was a consensus of the Council to hold the next
City Council meeting on November 23.
Page 2 - Council Meeting Minutes,November 9, 2020
2
COUNCIL MEETING MINUTES
NOVEMBER 9, 2020
MAYOR AND COUNCIL REPORTS
The Mayor and City Councilor’s had nothing to report.
ADJOURNMENT
Carney/Ellsworth… meeting be adjourned. The motion passed unanimously.
The meeting adjourned at 8:56 p.m.
APPROVED
ERIC SWENSON, MAYOR
ATTEST
Heather Pierson,City Recorder
City of Woodburn, Oregon
Page 3 - Council Meeting Minutes,November 9, 2020
3
Agenda Item
November 23, 2020
TO:Honorable Mayor and City Council through City Administrator
FROM:Eric Liljequist, Public Works Projects & Engineering Director
SUBJECT:Purchase and Acceptance of a Statutory Warranty Deed for Right-
of-Way Dedication at 1251 W. Hayes Street, Woodburn, OR 97071
(Tax Lot051W07CC02200)
RECOMMENDATION:
Authorize the purchase and acceptance ofaRight-of-Way dedication granted
byPavel Anfilofieff,property owner oftheproperty located at 1251 W. Hayes
Street, Woodburn, OR 97071 (Tax Lot 051W07CC02200).
:
BACKGROUND
In order to construct the W. Hayes Street Improvements, a10-foot wide right-of-
way dedicationalong the frontage of 1251 W. Hayes Street is required. The value
of the right-of-way dedication was proportionately determined from the latest
land value information provided by the Marion County Assessor’s property
records. Pavel is a City employeeand was not involved in the negotiation, except
as the subject property owner, and the purchase price was based upon the same
assessor’s office valuation that all similar right-of-wayacquisitions are based
upon.
DISCUSSION:
The 10-foot wide Right-of-Way dedication is located alongthepropertyfrontage,
adjacent toW. Hayes Street. The acquisition of this right-of-way will allow
completion of the W. Hayes Street Improvements Project.
FINANCIAL IMPACT:
Thecost to the City for the Right-of-Way Dedication is $6,466.00 and will be taken
from the approved W. Hayes Street Improvements Project budget.
Agenda Item Review:City Administrator __x____City Attorney ___x___Finance __x___
4
Mayor and City Council
November 23, 2020
Page 2
ATTACHMENTS
ACopy of the Statutory Warranty Deed document is included in Exhibit “A” and
Exhibit “B”.
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Agenda Item
November 23, 2020
TO:Honorable Mayor and City Council through City Administrator
THRU: Jim Ferraris, Chief of Police
Marty Pilcher, Deputy Chief of Police
FROM: Austin Solterbeck, Police Support Services Manager
SUBJECT:IGA with the City of Silverton
RECOMMENDATION:
Authorize the City Administrator to sign into an Intergovernmental agreement
with the City of Silverton.
BACKGROUND:
Since 2011, the City of Woodburn has held an Intergovernmental agreement
(IGA) with the City of Silverton in order to provide them with access to various
police software and services in exchange for compensation. The following are
some of the services provided: Computer Aided Dispatching software, LEDS
message switching capabilities, records management software and technical
support to maintain the various systems.
On June 1, 2020, theIGAwith the City of Silverton expired and necessitated a
renewal. The enclosed IGA has been modified to remove the renewal clause
and add new services for the recently purchased electronic citation and state
mandated STOP software.
:
DISCUSSION
This IGA would be effective until the cancelation clause is initiated by either
party.
This IGA has allowed the City of Silverton and the City of Woodburn’s Police
Departments to share policerecord information to the benefit of both the
agencies. Renewing this agreement would ensure that both parties continue to
have access to the necessary systems required for policing.
Agenda Item Review:City Administrator __x____City Attorney ___x___Finance _____
10
Honorable Mayor and City Council
November 23, 2020
Page 2
FINANCIAL IMPACT:
None. The City of Silverton has agreed to pay for all services and software
provided to them by the City of Woodburn.
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Agenda Item
November 23, 2020
TO:Honorable Mayor and City Council
FROM:Jim Row, Assistant City Administrator
McKenzie Granum, Assistant City Attorney
SUBJECT:Utility Service Ordinance & Resolution setting ROW Utility License
and Usage Fee Rates
RECOMMENDATION:
As part of the City's implementation of a new licensing program to regulate utility
services providers that access, use, and occupythe City's rights-of-way ("ROW"):
1.Enact the Utility Services Ordinance; and
2.Adopt a Resolution setting ROW utility license and usage fee rates in the
City.
BACKGROUND:
Earlier this year, staff initiated a review of the City’s process for regulating utility
services providers’ use of the City’s ROW.At the July 13th City Council Meeting,
Consultant Reba Crocker of ROW Consultants LLC, introduced what is to be a
new utility licensing program in the City. At that a meeting a general introduction
to the topic was presented and an initial draft ordinance and associated fee
resolution was presented for the Council's review. Following that meeting, the
proposed draft was sent to numerous providers of telecommunications, gas, and
electric services in Oregon.
The City received written feedback regarding its ordinance proposal from four
companies (AT&T, Verizon, Fatbeam, and PGE). The Council then reviewed this
feedback and other policy considerations regarding the ordinance and fee
resolution at a work session during its October council meeting.
DISCUSSION:
Agenda Item Review:City Administrator ___x___City Attorney __x____Finance __x___
17
Honorable Mayor and City Council
November 23, 2020
Page 2
By adopting the Utility Service Ordinance and correlating fee schedule, the City
will join roughly one dozen other municipalities in Oregon that have implemented
a uniform ROW licensing system.
Given the complexity of developing and implementing the proposed ROW
management program, staff has worked closely with ROW Consultants LLC, and
its Principal Reba Crocker, to develop the program, which if adopted will have
an implementation date of January 1, 2021.
After the City adopts the new Utility Services Ordinance, utility service providers
will be actively identified and subjected to the new licensing program. The six (6)
providers that are currently operating under franchise agreements will not be
subject to the new ROW management/licensing program until their existing
agreements expire.
As provided previously, the pertinent provisions of the enclosed Utility Services
Ordinance include:
Utilities operated by the City and other municipalities are exempted from
the requirements of this ordinance (currently managed under a different
ordinance);
Providers are required to maintain a City of Woodburn Business Registration;
Providers with existing franchises agreements are exempted until their
agreements expire;
Preserves the City’s right to enter into franchise agreements with individual
providers in situations where the public interest warrants;
Wire line cable television providers will continue to operate under franchise
agreements due to protections under FCC law;
Each license with utility providers will be for a term of five (5) years;
Licenses are transferrable upon the written consent of the City, provided
the transfers are consistent with state and federal law;
Providers seeking license renewals shall submit license applications at least
thirty (30) days, but not more than ninety (90) days prior to expiration;
Includes provisions under which the City may terminate licenses;
Includes requirements that providers must comply with related to the
location, construction, maintenance and removal of facilities in the ROW;
and
Provides for ROW license and usage fees to be established by resolution.
Current vs. Proposed usage fees are shown in the below chart with
substantivechanges highlighted in red:
18
Honorable Mayor and City Council
November 23, 2020
Page 3
CurrentProposedEnd User
NW Natural3% + 2% (5%)5%2%
PGE3.5% + 1.5% (5%)5%1.5%
Cable Franchised @5% 5%5%
•Waveof Gross Revenue
Small Cell Wireless0%$270 per year, Unknown
per cell
Facility Owners-Franchised @ 7% 7% of Gross Up to 7%
providing servicesof Gross RevenueRevenue
• Data Vision
• LightSpeed
• Wave
•Zayo
Facility Owners –not 0%$3.00 per linear 0%
providing servicesfoot - $5,000
•Longhaul/backhaul minimum
Non-Facility Owners0%7% of Gross Up to 7%
• Wireless Providers Revenue
• Resellers
•ESS providers
Program Implementation Timeline:
•November 9 –Ordinance & Resolution Adoption
•November 10 –December 31
•Management systems and forms developed
•Contact with all known providers
•License applications processed and issued
•Several providers have already requested applications
•January 1, 2021- Ordinance and Resolutionin effect
•April 30, 2021 - first usage payments are remitted
•Ongoing – at least yearly updates and housekeeping to the Ordinance
FINANCIAL IMPACT:
19
Honorable Mayor and City Council
November 23, 2020
Page 4
The development of a uniform utility service providerlicensing program is
anticipated to result in an increase in ROW usage fees, formerlyreferred to as
franchise fees. The amount of the increase is unknown at this time and will depend
on the number of utility service providers the City is able to determine are utilizing
the ROW.
Enclosures:
Utility Service Ordinance
Utility License& Usage Fee Resolution
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COUNCIL BILL NO. 3137
ORDINANCE NO. 2583
AN ORDINANCE PROVIDING FOR THE MANAGEMENT OF UTILITY SERVICES WITHIN
THE CITY AND ACCESS TO AND USE OF THE CITY'S RIGHTS-OF-WAY
WHEREAS, the City of Woodburn ("City") has a statutory and Constitutional
authority to manage its rights-of-way and to receive compensation for private use
of the rights-of-way consistent with applicable state and federal law;
WHEREAS, the City has generally granted individually-negotiated franchises
to each utility using the City's rights-of-way to provide utility services;
WHEREAS, the City has determined that it can more effectively, efficiently,
and fairly manage the City's rights-of-way and provide consistent standards for
utility useofthe rights-of-way through licenses rather than franchises;
THE CITY OF WOODBURN ORDAINS AS FOLLOWS:
.The ordinance willbe known and may be referenced as
Section 1.Title
the Utility Service Ordinance.
Section 2.Purpose and Intent.The purpose and intent of this Ordinance is
to:
A. Permit and manage reasonable access to and use ofthe City’s
rights-of-wayfor utility purposes and conserve the limited physical capacityof
those rights-of-wayheld in trust by the Cityconsistent with applicable state and
federal law;
B.Assure that the City’s current and ongoing costs of granting and
regulating access to, the use of the rights-of-wayand utility services provisioned
in the City,are fully compensated by the persons seeking such access and
causing such costs;
C.Secure fair and reasonable compensation to the Cityand its
residents for permitting use of the rights-of-wayby persons who generate revenue
by placing, owning, controlling, using or operating facilities therein or generate
revenue for utility services;
Page 1 Council Bill No. 3137
Ordinance No. 2583
21
D.Assure that all utility companies, persons and other entities owning,
operating facilities, using facilities,or providing services within the Citycomply with
the ordinances, rules and all regulations of the Cityheretofore or hereafter
amended or adopted;
1.For the purposes of this Ordinance, all utility services owned or
operated by the City are excluded.
2.For the purposes of this Ordinance, all utility services owned or
operated by other municipalities are excluded.
E.Assure that the Citycan continue to fairly and responsibly protect the
public health, safety and welfare of its residents;
F. Encourage the provision of advanced and competitive utility
services on the widest possible basis to businesses and residents of the City by,
1. Allowing the City to enter into other or additional agreements with
Utility Providers and Operators, if the public’s interest is served, and to
amend the requirement of this Ordinance and the City regulations,
as new technology is developed;
2. Allowing the City to be resilient and adaptive to changes in
technology; and
G.Comply with applicable provisions of state and federal law.
.
Section 3.Jurisdiction and Management of the Public Rights-of-way
A. The Cityhas jurisdiction and exercises regulatory management over,
all rights-of-waywithin the Cityand provision of services,under authority of the
City Charter and Oregonlaw.
B. The Cityhas jurisdiction and exercises regulatory management over
each right-of-waywhether the Cityhas a fee, easement, or other legal interest in
the right-of-way, and whether the legal interest in the right-of-waywas obtained
by grant, dedication, prescription, reservation, condemnation, annexation,
foreclosure or other means.
C.The exercise of jurisdiction and regulatory management of a right-of-
wayby the Cityis not official acceptance of the right-of-way anddoes not
obligate the Cityto maintain or repair any part of the right-of-way.
Page 2 Council Bill No. 3137
Ordinance No. 2583
22
D.The provisions of this Ordinance are subject to and will be applied
consistent with applicable state and federal laws, rules and regulations, and, to
the extent possible, willbe interpreted to be consistent with such laws, rules and
regulations.
Section 4.Regulatory Fees and Compensation Not a Tax.
A.The fees and costs provided for in this Ordinance, and any
compensation charged and paid for use of the rights-of-wayand the provision of
services provided for in this Ordinance, are separate from, and in addition to, any
and all other federal, state, local, and Citycharges, including but not limited to:
any permit fee, or any other generally applicable fees, tax, or charge on business,
occupations, property, or incomeas may be levied, imposed, or due from a utility
operator, utility provider, franchiseeor licensee, its customers or subscribers, or on
account of the lease, sale, delivery, or transmission of utility services.
B. The Cityhas determined that any fee or tax provided for by this
Ordinance is not subject to the property tax limitations of Article XI, Sections 11
and 11b of the Oregon Constitution. These fees or taxes are not imposed on
property or property owners.
C. The fees and costs provided for in this Ordinance are subject to
applicable federal and state laws.
Section 5.Definitions.For the purpose of this Ordinance the following
terms, phrases, words and their derivations willhave the meaning given herein.
When not inconsistent with the context, words not defined herein willbe given
the meaning set forth in the Communications Actof 1934, as amended, the
Cable Act, and the Telecommunications Act. If not defined in those statues, the
words willbe given their common and ordinary meaning. When not inconsistent
with the context, words used in the present tense include the future, words in the
plural number include the singular number and words in the singular number
include the plural number. The words “shall” and “will” are mandatory and
“may” is permissive.
“Cable Act” means the Cable Communications Policy Act of 1987, 47 U.S.C.,
Section 521, et seq., as now and hereafter amended.
“Cable service” is to be defined consistent with federal laws and means the one-
way transmission to subscribers of: (i) video programming, or (ii) other
Page 3 Council Bill No. 3137
Ordinance No. 2583
23
programming service; and subscriber interaction, if any, which is required for the
selection or use of such video programming or other programming service.
“Calendar year” means January 1 to December 31, unless otherwise noted.
“City” means the cityof Woodburn,an Oregon municipal corporation, and
individuals authorized to act on the City’s behalf.
“City council” means the elected governing body of the cityof Woodburn,
Oregon.
“City facilities” means Cityor publicly ownedstructures or equipment located
within the right-of-wayor public easement used for governmental purposes.
“City standards” means the all ordinances, codes, regulations and rules of the
City of Woodburn, in effect at the time of any work.
“City property” means and includes all real property owned by the City, other
than public right-or-way and utility easement as those are defined herein, and all
property held in proprietary capacity by the City.
“Communications services” means any service provided for the purpose of
transmission of information including, but not limited to, voice, video, or data,
without regard to the transmission protocolemployed, whether or not the
transmission medium is owned by the provider itself. Communications service
includes all forms of telephone services and voice, video, data or information
transport, but does not include: (1) cable service; (2) open video system service,
as defined in 47 C.F.R. 76; (3) private communications system services provided
without using the public rights-of-way; (4) public communications systems; (5)
over-the-air radio or television broadcasting to the public-at-large from facilities
licensed by the Federal Communications Commission or any successor thereto;
and (6) direct-to-home satellite service within the meaning of Section 602 of the
Telecommunications Act.
“Construction” means any activity in the public right-of-way resulting inphysical
change thereto, including excavation or placement of structures.
“Control” or “Use of Facilities” means actual working control over utility facilities in
whatever manner exercised, whether or not the facility is owned. For example,
but not limitation, Control means and includes leased capacity, transport, or any
other use.
Page 4 Council Bill No. 3137
Ordinance No. 2583
24
“Days” mean calendar days unless otherwise specified.
“Emergency” means a circumstance in which immediate work to repair
damaged or malfunctioning facilities is necessary torestore lost service or prevent
immediate harm to persons or property.
“Federal Communications Commission” or “FCC” meansthe federal
administrative agency, or its lawful successor, authorized to regulate and oversee
telecommunications carriers, servicesand providers on a national level.
“Gross Revenue” means any and all amounts, of any kind, nature or form, without
deduction for expense, less net uncollectable, derived from the operation
(including revenue derived from aleases or other agreements allowing use of
facilities toother utility operators or providers), oruseof utility facilitiesin the City,
operation of a Communications Services orthe provision of utility service(s)in the
City, subject to all applicable limitations in federal or state law.
“License” or “Utility License” means the authorization granted by the Cityto a
utility operatoror utility providerpursuant to this Ordinance.
“Licensee” or “Utility Licensee” means any person that has a valid Utility licensed
issued by the City.
“Person” means and includes any individual, firm, sole proprietorship, corporation,
company, partnership, co-partnership, joint-stock company, trust, limited liability
company, association, municipality, special district, government entityor other
organization, including any natural person or any other legal entity.
“Private communications system” means a system, including the construction,
maintenance or operation of the system, for the provision of a service or any
portion of a service which is owned or operated exclusively by a person for their
use and not for sale or resale, including trade, barter or other exchange of value,
directly or indirectly, to any person.
“Public communications system” means any system owned or operated by a
government entity or entities for its exclusive use for internal communications or
communications with other government entities, and includes services provided
by the state of Oregon pursuant to ORS 283.140. “Public communications system”
does not include any system used for sale or resale, including trade, barter or
other exchange of value, of communications services or capacity on the system,
directly or indirectly, to any person.
Page 5 Council Bill No. 3137
Ordinance No. 2583
25
“Public utility easement” means the space in, upon, above, along, across, over
or under an easement for the constructing, reconstructing, operating,
maintaining, inspecting, and repairing of utilities facilities. “Public utility easement”
does not include an easement (i) that has been privately acquired by a utility
operator, (ii) solely for the constructing, reconstructing, operating, maintaining,
inspecting, and repairing of cityfacilities, or (iii) where the proposed use by the
utility operator is inconsistent with the terms of any easement granted to the City.
“Right-of-way” , “Rights-of-Way”, “Public right-of-way”, or “ROW” means and
includes, but is not limited to, the space in, upon, above, along, across, over or
under the public streets, roads, highways, lanes, courts, ways, alleys, boulevards,
bridges, trails, paths, sidewalks, bicycle lanes, public utility easements and all
other public ways or areas, including the subsurface under and air space over
these areas, but does not include parks,parkland, or other cityproperty not
generally open to the public for travel. This definition applies only to the extent of
the City’s right, title, interest and authority to grant a license to occupy and use
such areas for utility facilities.
“Small CellWireless Facility” means Facilities owned or operated for the provision
of communications that are shorter ranged, wireless systems affixed to a structure
with generally smaller components than traditional Macro Wireless Facilities and
are deployed where suitable in flexible configurations to provide capacity and
coverage. Small Cell Wireless Facilities means a facility that meets each of the
following conditions per 47 C.F.R § 1.6002(l), as may be amended or superseded:
(1)The facilities (i) are mounted onstructures 50 feet or less in
height including the antennas, or (ii) are mounted on structures no
more than 10 percent taller thanother adjacent structures, or (iii) do
not extend existing structures on which they are located to a height
of more than 50 feet or by more than 10 percent, whichever is
greater;and,
(2)Each antenna associated with the deployment, excluding
associated antenna equipment, is no more than three cubic feet in
volume;and,
(3)All other wireless equipment associated with the structure,
including wireless equipment associated with the antenna and any
pre-existing associated equipment on the structure, is no more than
28 cubic feet in volume;and,
(4)The facilities do not result in human exposure to radio
Page 6 Council Bill No. 3137
Ordinance No. 2583
26
frequency in excess ofthe applicable safety standards specified in
47 C.F.R. §1.1307(b).
“State” means the state of Oregon.
“Structure” means any facility a Utility Provider or Utility Operator places in the
ROW, including but not limited to poles, vaults or manholes, hand holds, or
junction boxes, conduit, direct bury cable, wires, pedestals, aerial cables or wires
and transformers.
“Telecommunications Act” means the Communications Policy Act of 1934, as
amended by subsequent enactments including the Telecommunications Act of
1996 (47 U.S.C., 151 et seq.) and as hereafter amended.
“Utility facility” or “facility” means any physical componentof a system, including
but not limited to the poles, pipes, mains, conduits, ducts, cables, wires,
transmitters, plant, equipment and other facilities, located within, under or above
the rights-of-way, any portion of which is used or designed to be used to deliver,
transmit or otherwise provide utility service.
“Utility operator” or “operator” means any person who owns, places, controls,
operates or maintains a utility facility within the City.
“Utility provider” or “Provider” means any person who provides utility serviceor
communication servicesto customers within the City limits, whether or not any
facilities in the ROW are owned by such provider.
“Utility service” means the provision, by means of utility facilities permanently
located within, underor above the rights-of-way, whether or not such facilities are
owned by the service provider, of electricity, natural gas, communications
services, or cable services, to or from customers within the City limits, or the
transmission or provision of any of these services through the Citywhether or not
customers within the Cityare servedby those transmissionsand whether or not
the facilities used for transmission are owned by the service provider.
“Work” means the construction, demolition, installation, replacement, repair,
maintenance or relocation of any utility facility, including but not limited to any
excavation and restoration required in association with such construction,
demolition, installation, replacement, repair, maintenance or relocation.
.Business RegistrationRequired. Every
Section 6.Business Registration
person that desires to use, operate or control utility facilities,or provide utility
Page 7 Council Bill No. 3137
Ordinance No. 2583
27
services to customers within the Citywillregister with the Cityprior to use,
operation, control of utility facilities, or providing any utility services to any
customer in the City, in compliance with Ordinance No. 2399. Every person using,
operating, controlling, or providing utility services to customers within the Cityas
of the effective date of this Ordinance willobtain a Business Registration within
thirty (30)days of the effective date of this Ordinance. Every person subject to this
Ordinance willrenew and maintain a Business Registrationas required in
Woodburn’s Ordinances that areheretofore or hereafter amended, at all times
that the person, uses, operates, controls, provides or operates a utility services, to
customers within the City.
.
Section 7.Utility License
A.License Required. Except those utility operatorsand utility providers
with a valid franchise or other valid agreement from the City, every person will
obtain a Utility Licensefrom the Cityprior to conducting any work in or use of the
ROW, or providing utility services or communication services to or from customers
within the City limits, or the transmission or provision of any of these services
through the City whether or not customers within the City are served by those
transmissions and whether or not the facilities used for transmission are owned by
the service provider.
1.Every person that owns, or controls,provides utility services, oruses
utilityfacilities in the rights-of-wayasof the effective date of this
Ordinance willapply for a Utility Licensefrom the City within thirty (30)
days ofthe later of: (1) the effective date of this Ordinance, or (2) the
expiration of a valid agreement granted by the City, unless a new
agreement is granted by the City(3) for a person that is not a utility
operator, providing utility services within the City.
2.The provisions of this section do not apply to any person subject to
and in compliance with the cable television franchise requirement,
except that subsection K willapply to the extent such person provides
multiple services,subject to applicable law.
B.Utility LicenseApplication. The license application willbe on a form
provided by the City, and willbe accompanied by any additional documents
required by the applicationor the City, in the City’s sole discretion,to identify the
applicant, its legal status, including its authorization to do business in Oregon, a
description of the type of utility service provided or to be provided by the
applicant, a description of the facilities over which the utility service will be
Page 8 Council Bill No. 3137
Ordinance No. 2583
28
provisioned, and other information necessary to determine the applicant’s ability
tocomply with the terms of this Ordinance.
C.Utility License Application & Renewal Fee. The application and
renewal application willbe accompanied by a nonrefundable fee or deposit set
by resolution of the City Council.
D.Determination by City. The Citywillissue, within a reasonable period
of time, a written determination granting or denying the Utility Licensein whole or
in part. If the Utility Licenseis denied, the written determination willinclude the
reasons for denial. The Utility Licensewillbe evaluated based upon the provisions
of this Ordinance,the information contained on the Utility Licenseapplication, the
continuing capacityof the rights-of-wayto accommodate the applicant’s
proposed utility facilities and the applicable federal, state and local laws, rules,
regulations and policies.
E.Changes to information contained on the Utility Licenseapplication.
Within thirty (30) days of a change to the information contained in the license
application, the Licensee willnotify the City in writing of such change(s).
F.Franchise and other Agreements. If the public interest warrants, as
determined by the Cityin its sole discretion,the Cityand any communications
provider –including cable providers, utility operator or utility provider,including
Small Cell wireless providers,may enter into a written franchise or other
agreement that includes terms that clarify, enhance, expand, waive or vary the
provisions of this Ordinance, consistent with applicable state and federal law. The
agreement may conflict with the terms of this Ordinance with the review and
approval of City Council. The franchisee willbe subject to the provisions of this
Ordinance to the extent such provisionsare not in conflict with the express
provisions of any such franchise or agreement. In the event of a conflict between
the express provisions of a franchise or other agreementand this Ordinance, the
franchise or other agreementwillcontrol.
1.The provider requesting a franchise agreement willdeposit a non-
refundable fee, as set by resolution of theCity Council before
negotiations occur.
G.Rights Granted.
1.The Utility Licensegranted hereunder willauthorize and permit the
licensee, subject to the provisions of the Cityregulations and
ordinance and other applicable provisions ofthe City,state or
Page 9 Council Bill No. 3137
Ordinance No. 2583
29
federal law, in effect and as may be subsequently amended, to
construct, place, maintain, upgrade, repairand operate, controlor
useutility facilities in the rights-of-wayfor the term of the licensefor
the provision of utility service(s) authorized in the license. In the event
the licensee offers different service(s) than those authorized in the
license, the licensee willinform the City of such changes no later than
thirty (30) days after the change.
2.Any Utility Licensegranted pursuant to this Ordinance willnot convey
equitable or legal title in the rights-of-way andmay not be assigned
or transferred except as permitted in subsection L of this section.
Neither the issuance of the Utility Licensenor any provisions
contained therein willconstitute a waiver or bar to the exercise of
any governmental right or power, including without limitation,the
police power or regulatory power of the City, in existence at the time
the license is issued or thereafter obtained.
H.Term. Subject to the termination provisions in subsection N of this
section, theUtility License granted pursuant to this Ordinance will be effective as
of the date it is issued by the City or the date services began, whichever comes
st
first, and will have a term of five (5) calendar years beginning: (1) January 1of
the year in which the license took effect for licenses that took effect between
stthst
January 1and June 30; or (2) January 1of the year after the license took effect
stst
for licenses that become effective between July 1and December 31.
I. Utility License Nonexclusive. No license granted pursuant to this
section willconfer any exclusive right, privilege, license or franchise to occupy or
use the rights-of-wayfor delivery of utility services or any other purpose. The City
expressly reserves the right to grant licenses, franchises or other rights to other
persons, as well as the City’s right to use the rights-of-way, for similar or different
purposes. The license is subject to all recorded deeds, easements, dedications,
conditions, covenants, restrictions, encumbrances, and claims of title of record
that may affect the rights-of-way. Nothing in the license willbe deemed to grant,
convey, create, or vest in licensee a real property interest in land, including any
fee, leasehold interest or easement.
J.Reservation of City Rights. Nothing in theUtility Licensewillbe
construed to prevent the Cityfrom grading, paving, repairing and/or altering any
rights-of-way, constructing, laying down, repairing, relocating or removing City
facilities or establishing any other public work, utility or improvement of any kind,
including repairs, replacement or removal of any cityfacilities. If any of licensee’s
Page 10 Council Bill No. 3137
Ordinance No. 2583
30
utility facilities interfere with the construction, repair, replacement, alteration or
removal of any rights-of-way, public work, city utility, cityimprovement or city
facility, except those providing utility services in competition with a licensee,
licensee’s facilities willbe removed or relocated as provided in subsections C, D
and E of Section 9, in a manner acceptable to the Cityand consistent withCity
standards, industry standard engineering and safety codesin effect at the time
the work is required.
K.Multiple Services.
1.A utility operator that provides or transmits or allows the provision or
transmission of utility services and other services over its facilities is
subject to the license and Usagefeerequirements of this Ordinance
for the portion of the facilities and extent of utility services delivered
over those facilities.Nothing in this subsection J(1) requires a utility
operator to pay the Usageuse fee, if any, owed to the Cityby
another personusing the utility operator’s facilities.
2.A utility operator that provides or transmits more than one utility
service to customers in the City maynot be required to obtain a
separate Utility Licenseor franchise for each utility service, but is
required to file separatereports,remittancesand submit any Usage
fees due for each service provided.
. To the extent permitted by applicable state
L.Transfer or Assignment
and federal laws, the Utility Licenseewillobtain the written consent of the City
prior to the transfer or assignment of the license. The license willnot be transferred
or assigned unless:
1.The proposed transferee or assignee is authorized under all
applicable laws to own or operate the utility facilities and/or provide
the utility service authorized under the license; and
2.The transfer or assignment is approved by all agencies or
organizations required or authorized under federal and state laws to
approve such transfer or assignment.
The Utility Licenseerequesting the transfer or assignment will fullycooperate with
the City and provide requested documentation, as the City deems necessary, in
the City’s sole discretion, at no cost to the City, to sufficiently understand the
transferees’ abilityto perform under the license.
Page 11 Council Bill No. 3137
Ordinance No. 2583
31
If the City approves such transfer or assignment, the transferee or assignee will
become responsible for fulfilling all obligations under theUtility License. A transfer
or assignment of a license does not extend the term of the license.
l. At least thirty (30) days, but no more than ninety (90) days
M.Renewa
prior to the expiration of a Utility Licensegranted pursuant to this section, a
licensee seeking renewal of its license willsubmit a license application to the City,
including all information required in subsection B of this section and applicable
fees fee required in subsection C of this section. The Citywillreview the
application as required by subsection D of this section and grant or deny the
license. If the Citydetermines that the licensee is in violation of the terms of this
Ordinance, or other City Ordinances, rules or regulations,at the time it submits its
application, the Citymay require that the licensee cure the violation or submit a
detailed plan to cure the violation within a reasonable period of time, as
determined by the City, before the Citywill consider the application and/or grant
the license. If the Cityrequires the licensee to cure or submit a plan to cure a
violation, the Citywill grant or deny the license application within ninety (90) days
of confirming that the violation has been cured or of accepting the licensee’s
plan to cure the violation.
N.Termination.
1.Revocation or Termination of a Utility License. The City may terminate
or revoke the license granted pursuant to this Ordinance for any of
the following reasons:
a.Violation of any of the provisions of this Ordinance;
b.Violation of any provision of the license;
c.Misrepresentation in a license application;
d.Failure to pay taxes, compensation, fees or costs due the City
after final determinationby the City,of the taxes, compensation,
fees or costs;
e.Failure to restore the rights-of-wayafter construction as required
by this Ordinance or other applicable state and local laws,
ordinances, rules and regulations;
f.Failure to comply with technical, safety and engineering
standards related to work in the rights-of-way; or
g.Failure to obtain or maintain any and all licenses, permits,
certifications and other authorizations required by state or federal
law for the placement, maintenance and/or operation of the
utility facilities.
Page 12 Council Bill No. 3137
Ordinance No. 2583
32
2.Standards for Revocation or Termination. In determining whether
termination, revocation or some other sanction is appropriate, the
following factors willbe considered:
a. The egregiousness of the misconduct;
b. The harm that resulted;
c. Whether the violation was intentional;
d.The Licensee’s history of compliance; and/or
e.The Licensee’s cooperation in discovering, admitting and/or
curing the violation.
3.Notice and Cure. The Citywillgive the Utility Licenseewritten notice
of any apparent violations before terminating a Utility License. The
notice willinclude a short and concise statement of the nature and
general facts of the violation or noncompliance and provide a
reasonable time (no less than twenty (20) and no more than forty (40)
days) for the Licensee to demonstrate that the Licensee has
remained in compliance, that the Licensee has cured or is in the
process of curing any violation or noncompliance, or that it would be
in the public interest to impose a penalty or sanction less than
termination or revocation. If the Licensee is in the process ofcuring a
violation or noncompliance, the Licensee must demonstrate that it
acted promptly and continues to actively work on compliance. If the
Licensee doesnotrespond or if the City determines that the
Licensee’s response is inadequate, the City may revoke and/or
terminate the Utility License.
4.Termination by Utility Licensee. If a licensee ceases to be required to
have a Utility License,as defined under this Ordinance, the licensee
may terminate or surrender its license, with a thirty (30) day noticeto
the City. Licensee may reapply for a Utility Licenseat any time. No
refunds or credits will be given for licenses terminated by the licensee
or the City.
a.Within thirty (30)daysof surrendering a Utility License, the licensee
willfile a final remittance form with the City stating, “final
remittance” and will remit any funds due.
b.Upon surrendering a Utility License, the licensee will file a written
statement that it has removed, or will remove within 60 days, any
and all facilities from the City and no longerprovides Utility
Services, as defined in this ordinance.
.
Section 8.Construction and Restoration
Page 13 Council Bill No. 3137
Ordinance No. 2583
33
A.Construction Codes. Utility facilities willbe constructed, installed,
operated, repairedand maintained in accordance with all applicable federal,
state and local codes, rules and regulations, including but not limited tothe
National Electrical Code and the National Electrical Safety Codeand the City
Standards, in effect at the time of the work. When a utility operator, utility provider
or licensee, or any person acting on its behalf, does any work in or affecting the
rights-of-way, the utility operator will, at its own expense, promptly restore the
rights-of-wayas directed by the Cityconsistent with applicable citycodes, rules
and regulations, in effect at the time of the work. A utility operator, utility provider,
licensee or other person acting on its behalf willuse suitable barricades, flags,
flagging attendants, lights, flaresand other measures as required for the safety of
all members of the general public and to prevent injury or damage to any
person(s), vehicle or property by reason of such work in or affecting the rights of
way or property.
B.Construction Permits.
1.No person willperform any work on utility facilities within the rights-of-
waywithout first obtaining all required permits. The Citywillnot issue
a permit for the construction, installation, maintenance or repair of
utility facilities unless the utility operator of the facilities hasapplied for
and received a valid license, franchise agreement or other valid
agreement (if applicable),required by this Ordinance, and all
applicable fees have been paid. No permit is required for routine
maintenance or repairs to customer service drops where such,
repairs or maintenance do not require cutting, digging, or breaking
of, or damage to, the right of way and do not result in closing or
blocking any portion of the travel lane for vehicular traffic, bicycle
lanes or sidewalks.
2. In the event of an Emergency, a utility operator or provider with a
license pursuant to this Ordinance or its contractor may perform work
on its utility facilities without first obtaining a permit from the City,
provided that, to the extent reasonably feasible, it attempts to notify
the City prior to commencing the emergency work and in any event
applies for a permit from the City as soon as reasonably practicable,
but not later than 5:00pm PST of the next business day after
commencing the emergency work.
Section 9.Location of Facilities.
A.Location of Facilities. Unless otherwise agreed to in writing by the City:
Page 14 Council Bill No. 3137
Ordinance No. 2583
34
1. All utility operators are required to make good faith effort to both
cooperate with and coordinate their construction schedule with
those of the City and other users.
2. Utility facilities willbe installed underground in all areas of the City
where there are no existing polesin the ROW, there is no spaceon
existing poles in the ROW, or where the only poles in the ROWare
used only for high voltage lines (as defined below). This requirement
willnot apply to facilities used for transmission of electric energy at
nominal voltages in excess of thirty-five thousand (35,000) volts or to
antennas, pedestals, cabinets or other above-ground equipment of
any utility operatorfor which the utility operator has written
authorization to place above-ground.
3. Whenever any existing electric utilities, cable facilities or
communications facilities are located underground within theROW
of the City, the utility operator with permission to occupy the same
ROWwillinstall all new facilities undergroundat no cost to the City.
This requirement willnot apply to facilities used for transmission of
electric energy at nominal voltages in excess of thirty-five thousand
(35,000) volts (“high voltage lines”) or to antennas, pedestals,
cabinets or other above-ground equipment of any utility operator.
The Cityreserves the right to require written approval of the location
of any such above-ground equipment in the ROW.
B.Interference with the Rights-of-Way. No utility operator or other
person may locate or maintain its facilities so as to unreasonably interfere with the
use of the rights-of-wayby the City, by the general public or by other persons
authorized to use or be present in or upon the rights-of-way.Utility facilities willnot
be located in area of restricted sight distance nor interfere with the proper
function of traffic control signs, signals, lighting, or other devices that affect traffic
operation. All use of the rights-of-waywillbe consistent with Citycodes,
ordinances, rulesand regulationsin effect and as may be subsequently
amended.
C.Relocation of Utility Facilities. Unless otherwise agreed to in writing by
the City:
1.A utility operator will, at no cost to the City, temporarily or
permanently remove, relocate, change or alter the position of any
utility facility within theROW, including relocation of aerial facilities
Page 15 Council Bill No. 3137
Ordinance No. 2583
35
underground, when requested to do so in writing by the City. If
relocation is required by the City, the City willbear no responsibility or
incur any costs, to provide or in any way secure alternate locations.
2.Nothing herein willbe deemed to preclude the utility operator from
seeking reimbursement or compensation from a third party, pursuant
to applicable laws, regulations, tariffsor agreements, provided that
the utility operator willtimely comply with the requirements of this
section regardless of whether or not it has requested or received such
reimbursement or compensation.
3.The City maycoordinate the schedule for relocation of utility facilities
and based on such effort willprovide written notice of the time by
which the utility operator must remove, relocate, change, alter or
underground its facilities. If a utility operator fails to remove, relocate,
change, alter or underground any utility facility as requested by the
City by the date reasonably established by the City, the utility
operator willpay all costs incurred by the City due to such failure,
including but not limited to costs related to project delays, and the
City may cause, using qualified personnel or contractors consistent
with applicable state and federal safety laws and regulations, the
utility facility to be removed, relocated, altered, or undergrounded
at the utility operator’s sole expense. Upon receipt of aninvoice from
the City, the utility operator willreimburse the City for the costs the
City incurred within thirty (30) days.
4.The City will cooperate with the utility operator in securing alternate
locations. However, the City will bear no responsibility or costs for
securing alternate locations. The City will bear no responsibility to
obtain, compensate, or otherwise assist the utility operator in
relocation of is facilities to location not in the control of the City.
D.Removal of Unauthorized Facilities.
1.Unless otherwise agreed to in writing by the City, within thirty (30) days
following written notice from the Cityor such other time agreed to in
writing by the City, a utility operator and any other person that owns,
controls, or maintains any abandoned or unauthorized utility facility
within therights-of-waywill, at its own expense, remove the facility
and restore the affected area.
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Ordinance No. 2583
36
2.A utility system or facility is unauthorized under any of the following
circumstances:
a.The utility facility, or any portion of the facility,is outside the scope
of authority granted by the Cityunder the Utility License, franchise
or other written agreement. This includes facilities that were never
licensed or franchised and facilities that were once licensed or
franchised but for which the license or franchise has expired or
been terminated. This does not include any facility for which the
Cityhas provided written authorization for abandonment in
place.
b.The facility has been abandoned and the Cityhas not provided
written authorization for abandonment in place. A facility is
abandoned if it is not in use and is not planned for further use. A
facility will be presumed abandoned if it is not used for a period
of twelve (12) consecutive months. A utility operator may
overcome this presumption by presenting plans for future use of
the facility.
c.The utility facility is improperly constructed or installed or is in a
location not permitted by the construction permit, license,
franchise or this Ordinance.
d.The utility operator is in violation of a material provision of this
Ordinance and fails to cure such violation within thirty (30) days of
the Citysending written notice of such violation, unless the City
extends such time period in writing.
E.Removal by City.
1.The Cityretains the right and privilege to cut or move any utility,
without notice, as the City determines, at its sole discretionto be
necessary, appropriate or useful in response to a public health or
safety emergency. The Citywill use qualified personnel or
contractors consistent with applicable state and federal safety laws
and regulations to the extent reasonably practicable without
impeding the City’s response to the emergency. The Citywill use best
efforts to providetheutility operator with notice prior tocutting or
moving facilities. If prior notice is not possible, the Citywill provide
such noticeas soon as reasonably practicable after resolution of the
emergency.
2.If the utility operator fails to remove any facility when required to do
so under this Ordinance, the Citymay remove the facility using
qualified personnel or contractors consistent with applicable state
Page 17 Council Bill No. 3137
Ordinance No. 2583
37
and federal safety laws and regulations, and the utility operator will
be responsible for paying the full cost of the removal and any
administrative costs incurred by the Cityin removing the facility and
obtaining reimbursement. Upon receipt of aninvoice from the City,
the utility operator willreimburse the Cityfor the costs the City
incurred within thirty (30) days. The obligation to remove willsurvive
the termination of the license or franchise.
3.The Citywillnot be liable to any utility operator for any damage to
utility facilities, or for any incidental or consequential losses resulting
directly or indirectly therefrom, by the Cityor its contractor in
removing, relocating or altering the facilities pursuant to this Section
9, or resulting from the utility operator’s failure to remove, relocate,
alter or underground its facilities as required by this Section 9, unless
such damage arises directly from the City’s or it’s contractor’s
negligence or willful misconduct.
.The utility operator willprovide the
F.Engineering Record Drawings
Citywith two complete sets of record drawingsin a form acceptable to the City
showing the location of all its utility facilities after initial construction if such plan
changed during construction. The utility operatorwillprovide updated complete
sets of as built plans upon request of the City, but not more than once per year.
G. Facility Map.Utility operator, Utility provider and Utility Licenseewill
provide, at no cost to the City, a comprehensive map showing the location of
any facility in the City. Such map willbe provided in a format acceptable to the
City, with accompanying data sufficient enough for the City to determine the
exact location of facilities, currently in Shapefile or Geodatabase format. The
Utility Operator, Utility Provider and Utility Licenseewill provide such map yearly by
February 1if any changes occurred during the prior year. The City may also
request and will be provide the map, at no cost to the City, upon request, no
more than once per year.
Section 10.Leased Capacity.A utility operator may lease capacityon or
in its facilities to others, provided thatthe utility operator requires and has
verified with the City, that the proposed lessor has obtained proper authority
from the City prior to leasing capacity or allowing use of itsfacilities. Upon
request, at no cost to the City, the utility operator willprovide a complete list
with the name, businessaddressand contact informationof any lessee. If
requested by the City, the utility operator will also provide exact details of any
attachment by lessee.Autility operator is not required to provide such
information if disclosure is expressly prohibited by applicable law.
Page 18 Council Bill No. 3137
Ordinance No. 2583
38
Section 11.Maintenance.
A. Every utility operator willinstall and maintain all facilities in a manner
that complies with applicable federal, state and local laws, rules, regulations and
policies. The utility operator will, at its own expense, repair and maintain facilities
from time to time as may be necessary to accomplish this purpose.
B. If, after written notice from the Cityof the need for repair or
maintenance as required in subsection A of this section, a utility operator fails to
repair and maintain facilities as requested by the Cityand by the date reasonably
established by the City, the Citymay perform such repair or maintenance using
qualified personnel or contractors consistent with applicable state and federal
safety laws and regulations at the utility operator’s sole expense. Upon receipt of
an invoice from the City, the utility operator willreimburse the Cityfor the costs
the Cityincurred within thirty (30) days.
.If the Cityvacates any ROW, or portion thereof, that
Section 12.Vacation
a utility operator uses, the utility operator will, at its own expense, remove its
facilities from the ROWunless the Cityreserves a public utility easement, which
the Citywillmake a reasonable effort to do provided that thereis no expense to
the City, or the utility operator obtains an easement for its facilities. If the utility
operator fails to remove its facilities within thirty (30) days after a ROW is
vacated, or as otherwise directed or agreed to in writing by the City, the City
may remove the facilities using qualified personnel or contractors consistent with
applicable state and federal safety laws and regulations at the utility operator’s
sole expense. Upon receipt of an invoice from the City, the utility operator will
reimburse the Cityfor the costs the Cityincurred within thirty (30) days.
Section 13.Usage Fee.
A. Except as set forth in subsection Bof this section, every person that
owns utility facilities in the City’s rights-of-wayand every person that uses or
controls utility facilities in the City’s rights-of-way to provide utility service, whether
or not the person owns the utility facilities used to provisionthe utility services and
every person that provides utility services within the City, willpay the usage fee for
every utility service provided in the amount determinedby resolution of the City
Council.
B.A utility operator whose only facilities in the ROWare facilities
mounted on above-ground structures within the ROW, which structures are
owned by another person, and with no facilities strung between such structures
Page 19 Council Bill No. 3137
Ordinance No. 2583
39
or otherwise within, under or above the ROW(other than equipment necessary to
operate the mounted facilities that has been expressly approved by the City to
be placed in the ROW),willpay the attachment fee set by City Council resolution
for each attachment, or such other fee set forth in the license granted by the City.
Unless otherwise agreed to in writing by the City, the fee willbe paid quarterly, in
arrears, withinthirty (30)days after the end of each calendar quarter andwillbe
accompanied by information sufficient to illustrate the calculation of the amount
payable.
C. No acceptance of any payment willbe construed as accord that
the amount paid is in fact the correct amount, nor will such acceptance of
payment be construed as a release of any claim the City may have for further or
additional sums payable.
D.Usagefeepayments required by this section willbe reduced by any
franchise fees or privilege taxes, due to the City, but in no case will be less than
zero dollars ($0).
E.Unless otherwise agreed to in writing by the City, theUsage fee set
forth in subsection A of this section willbe paid quarterly, in arrears, within thirty
(30)days after the end of each calendar quarter. Each paymentwillbe
accompanied by an accounting of gross revenues, if applicable, and a
calculation of the amount payable(a remittance form will be provided by the
City).The City may request and will be provided at no cost to the City, any
additional reports or information it deems necessary, in its sole discretion, to ensure
compliance by the utility provider, utility operator or licensee. Such information
may include, but is not limited to: chart of accounts, total revenues by categories
and dates, list of products and services, narrative documenting calculation,
details on number of customers within the City limits, or any other information
needed for the City to easily verify compliance.
F.The calculation of the Usagefeerequired by this section willbe
subject to all applicable limitations imposed by federal or state lawin effect and
as may be subsequently amended.
G. The Cityreserves the right to enact other fees and taxes applicable
to the utility providers, utility operators and licensee subject to this Ordinance.
Unless expressly permitted by the Cityin enacting such fee or tax, or required by
applicable state or federal law, no utility operator may deduct, offset or otherwise
reduce or avoid the obligation to pay any lawfully enacted fees or taxes based
on the payment of the Usage fees or any other fees required by this Ordinance
Page 20 Council Bill No. 3137
Ordinance No. 2583
40
Section 14.Penalties and Interest on Usage Fee.Penalties and interest
imposed by this section are in addition to any penalties that may be assessed
under other ordinances orregulations of the City.
A.Any person who has not submitted the required remittance forms or
remitted the correct fees when due as provided in Section13willpay a penalty
listed below in addition to the amount due:
1.First occurrence during any one calendar year; Ten percent
(10%) of the amount owed, or Twenty-five dollars ($25.00),
whichever is greater.
2.Second occurrence during any one calendar year; Fifteen
percent (15%) of the amount owed, or Fifty dollars ($50.00),
whichever is greater.
3.Third occurrence during any one calendar year; Twenty percent
(20%) or the amount owed, or Seventy-five dollars ($75.00),
whichever is greater.
4.Fourth occurrence during any one calendar year; Twenty-five
percent (25%) of the amount owed, or One hundred dollars
($100.00), whichever is greater.
B.If the City determines that the nonpayment of any remittance due
under this section is due to fraud or intent to evade the provisions hereof, an
additional penalty of twenty-five percent (25%) of the amount owed, or Five
hundred dollars ($500.00), whichever is greater, willbe added theretoin addition
to other penalties stated in section 14.
C.In addition to the penalties imposed, any person who fails to remit
any fee when due as provided in Section 13willpay interest at the rate of 1.5%
per month or fractions thereof, without proration for portions of a month, on the
total amount due (including penalties), from the date on which the remittance
first became delinquent, until received by the City.
D.Every penalty imposed, and such interest as accrues under the
provision of this section, willbe merged with, and become part of, the fee
required to be paid.
The City or its designee, in their sole discretion, willhave the authority to reduce
or waive the penalties and interest due under Section 14.
Page 21 Council Bill No. 3137
Ordinance No. 2583
41
Section 15.Audits and Records Requests.
A.Within thirty (30) days of a written request from the City, or as
otherwise agreed to in writing by the City:
1.EveryUtility Licensee, Utility Operator and Utility Provider will furnish
the City, at no cost to the City,with information sufficient to
demonstrate compliance with all the requirements of this
Ordinance, any franchise agreements or other agreements, if
any, including but not limited to payment of any applicable
Business Registrationfee, licensing fee, usage fee, attachment
fee, franchise feeor privilege taxes.
2.Every Utility Operator, Utility Provider and Utility Licenseewill make
available for inspection by the Cityat reasonable times and
intervals all maps, records, books, diagrams, plans and other
documents, maintained by the utility operator with respect to its
facilities or use of facilities, within the rights-of-way. Access willbe
provided within the Cityunless prior arrangement for access
elsewhere has been madeand approved by the City.
B.If the City’s audit of the books, records and other documents or
information of theUtility Licensee, Utility Operator or Utility Provider demonstrate
that there has been underpaid the usagefee,licensing fee, attachment feeor
franchise feeor any other fee or paymentby two percent (2%) or more in any
one(1)year, the licensee, utility operator, or utility provider willreimburse the City
for the cost of the audit, in addition to any interest owed pursuant to Section 14
or as specified inother agreements or franchises with the City.
C.Any underpayment, including any interest or audit cost
reimbursement, willbe paid within thirty (30) days of the City’s noticeof such
underpayment.
D. The Licensee, Utility Provider or Utility Operator is not required to
maintain records for more than six (6) years. The City is not required to maintain
records beyond the State retention schedules.
Section 16.Insurance and Indemnification.
Page 22 Council Bill No. 3137
Ordinance No. 2583
42
A.Insurance.
1.All utility operators willmaintain in full force and effect the following
liability insurance policies that protect the utility operator and the
City, as well as the City’s officers, agents, and employees:
a.Comprehensive general liability insurance with limits not less than:
i.Three million dollars ($3,000,000.00) for bodily injury or death to
each person;
ii.Three million dollars ($3,000,000.00) for property damage
resulting from any one accident;and
iii.Three million dollars ($3,000,000.00) for all other types of
liability.
b.Commercial Automobileliability insurance for owned, non-
owned and hired vehicles with a limit of one million dollars
($1,000,000.00) for each person and three million dollars
($3,000,000.00)for each accident.
c.Worker’s compensation within statutory limits and employer’s
liability with limits of not less than one million dollars ($1,000,000.00).
d.If not otherwise included in the policies required by subsection a.
above, maintain comprehensive form premises-operations,
explosions and collapse hazard, underground hazard and
products completed hazard with limits of not less than three million
dollars ($3,000,000.00).
e. Utility operator may utilize primary and umbrella liability insurance
policies to satisfy the preceding insurance policy limit
requirements.
2.The limits of the insurance willbe subject to statutory changes as to
maximum limits of liability imposed on municipalities of the state of
Oregon. The insurance willbe without prejudice to coverage
otherwise existing and willname, or the certificate of insurance will
name, with the exception of worker’s compensation, as additional
insureds the Cityand its officers, agents, and employees. The
coverage must apply as to claims between insureds on the policy.
The insurance willnot be canceled or materially altered without thirty
(30) days prior written notice first being given to the City, and the
certificate of insurance willinclude such an endorsement. If the
insurance is canceled or materially altered, the utility operator will
obtaina replacement policy that complies with the terms of this
sectionand provide the Citywith a replacement certificate of
insurance. The utility operator willmaintain continuous uninterrupted
Page 23 Council Bill No. 3137
Ordinance No. 2583
43
coverage, in the terms and amounts required. The utility operator
may self-insure, or keep in force a self-insured retention plus
insurance, for any or all of the above coverage.
3.The utility operator willmaintain on file with the Citya certificate of
insurance, or proof of self-insurance acceptable to the City,
certifying the coverage required above.
B.Financial Assurance. Unless otherwise agreed to in writing by the City,
before a franchise is granted or license issued pursuant to this Ordinance is
effective, and as necessary thereafter, the utility operator willprovide a
performance bond or other financial securityor assurance, in a form acceptable
to the City, as security for the full and complete performance of the franchiseor
license, if applicable, and compliance with the terms of this Ordinance, including
any costs, expenses, damages or loss the Citypays or incurs because of any
failure attributable to the utility operator to comply with the codes, ordinances,
rules, regulations or permits of the City. This obligation is in addition to the
performance surety required under this Ordinance.
C.Indemnification.
1.Each utility licensee willdefend, indemnify and hold the Cityand its
officers, employees, agents and representatives harmless from and
against any and all liability, causes of action, claims, damages,
losses, judgments and other costs and expenses, including attorney
fees and costs of suit or defense (at both the trial and appeal level,
whether or not a trial or appeal ever takes place) that may be
asserted by any person in any way arising out of, resulting from,
during or in connection with, or alleged to arise out of or result from
the negligent, careless, or wrongful acts, omissions, failure to act, or
other misconduct of the utility licensee or its affiliates, officers,
employees, agents, contractors, subcontractors, or lessees in the
construction, operation, maintenance, repair, or removal of its
facilities, and in providing or offering utility services over the facilities,
whether such acts or omissions are authorized, allowed, or prohibited
by this Ordinance or by a franchise agreement. The acceptance of
aUtility license, orof a franchise granted by the City, will constitute
such an agreement by the applicant whether the same is expressed
or not, unless expressly stated otherwise in the license or franchise.
Upon notification of any such claim the Citywillnotify the utility
operator and provide the utility operator with an opportunity to
provide defense regarding any such claim.
Page 24 Council Bill No. 3137
Ordinance No. 2583
44
2.Every utility licensee willalso indemnify the Cityfor any damages,
claims, additional costs or expenses assessed against or payable by
the Cityarising out of or resulting, directly or indirectly, from the utility
licensee’s failure to remove or relocate any of its facilities in a timely
manner, unless the utility licensee’s failure arises directly from the
City’s negligence or willful misconduct.
Section 17.Compliance.Every Utility licensee, utility operatorand utility
provider willcomply with all applicable federal and state laws and regulations,
including regulations of any administrative agency thereof, as well as all
applicable ordinances, resolutions, rules and regulations of the City, heretofore
or hereafter adopted or established during the entire term of any Utility License
granted under this Ordinance.
Section 18.Confidential/Proprietary Information.If any personis required
by this Ordinance to provide books, records, maps or information to the Citythat
the personreasonably believes to be confidential or proprietary, and such
books, records, maps or information are clearly marked as confidential at the
time of disclosure to the City(“confidential information”), the Citywilltake
reasonable steps to protect the confidential information to the extent permitted
by Oregon Public Records Laws. In the event the Cityreceives a public records
request to inspect any confidential information and the Citydetermines that it
will be necessary to reveal the confidential information, to the extent reasonably
possible the Citywill notify the person that submitted the confidential
information of the records request prior to releasing the confidential information.
The Citywillnot be required to incur any costs to protect any confidential
information,other than the City’s routine internal procedures for complying with
the Oregon Public Records Law.
Section 19.Penalties and Violations.
A.Any person found in violation of any of the provisions of this
Ordinance or the Utility Licensewillbe subject to a penalty of not less than one
hundred fifty dollars ($150), nor more than twenty-five hundred dollars ($2,500) for
each offense,which shall be processed in accordance with theprocedures
contained in the WoodburnCivil Infraction Ordinance (Ord. No. 1998). A violation
willbe deemed to exist separately for every section violated and be assessed
each and every day during which a violation exists.
B.Nothing in this Ordinance willbe construed as limiting any judicial or
other remedies the Citymay have at law or in equity, for enforcement of this
Page 25 Council Bill No. 3137
Ordinance No. 2583
45
Ordinance, including those Civil Infractions that may be imposed under
Ordinance 1998.
C. The City or its designee, in their sole discretion, willhave the
authority to reduce or waive the penalties and interest due under this subsection
19.
Section 20.Severability and Preemption.
A.The provisions of this Ordinance willbe interpreted to be consistent
with applicable federal and state law, and willbe interpreted, to the extent
possible, to cover only matters not preempted by federal or state law.
B. If any article, section, subsection, sentence, clause, phrase, term,
provision, condition or portion of this Ordinance is for any reason declared or held
to be invalid or unenforceable by any court of competent jurisdiction or
superseded by state or federal legislation, rules, regulations or decision, the
remainder of thisOrdinance willnot be affected thereby but willbe deemed as
a separate, distinct and independent provision, and such holding willnot affect
the validity of the remaining portions hereof, and each remaining section,
subsection, clause, phrase, term, provision, condition, covenant and portion of
this Ordinance willbe valid and enforceable to the fullest extent permitted by
law. In the event any provision is preempted by federal or state laws, rules or
regulations, the provision willbe preempted only to the extent required by law
and any portion not preempted willsurvive. If any federal or state law resulting in
preemption is later repealed, rescinded, amended or otherwise changed to end
the preemption, such provision willthereupon return to full force and effect and
willthereafter be binding without further action by the City.
Section 21.Application to Existing Agreements.To the extent that this
Ordinance is not in conflict with and can be implemented consistent with
existing franchise agreements, this Ordinance willapply to all existing franchise
agreements granted to utility operatorsand utility providersby the City.
Section 22. Effective Date. This Ordinance shall take effect on January 1,
2021.
Approved as to form:
City AttorneyDate
Page 26 Council Bill No. 3137
Ordinance No. 2583
46
Approved:
Eric Swenson, Mayor
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST:
Heather Pierson, City Recorder
City of Woodburn, Oregon
Page 27 Council Bill No. 3137
Ordinance No. 2583
47
COUNCIL BILL NO. 3138
RESOLUTION NO. 2162
ARESOLUTION SETTING THE RIGHT-OF-WAY UTILITY LICENSE AND USAGE FEE RATES
WITHIN THE CITY OF WOODBURN
WHEREAS,the City of Woodburn("City") has constitutional and charter
authority to manage its rights-of-wayand utility usage within the City; and
WHEREAS, the WoodburnCity Counciladoptedan ordinance regulating
utilities operating within the Cityand exercising the City’s authority to secure
compensation to the City and its residents for utility use;
WHEREAS, per the ordinance theWoodburnCouncil shall by resolution
establish Utility Licensing fees;
WHEREAS,per the ordinance the Woodburn Council shall by resolution
establish a Franchise negotiations fee; and
WHEREAS, per ordinance the WoodburnCity Council shall by resolution
establish Usage fees;NOW, THEREFORE,
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1. The Utility License application fee shall be $300.00 (excluding
Small Cell Wireless Facilities) and shall include an initial five-year license (if
approved).
Section 2. Utility License application fee for Small Cell Wireless Facilities, as
they involve both access to rights-of-way and vertical infrastructure shall be
$500.00 for up to 5 sites and $100.00 for each additional site, plus any additional
reasonable fees the City must incur for outside expertise to evaluate such
applications,including compliance with the Federal Communication
Commission “RF” standards.
Section 3. The Utility License renewal fee (excluding Small Cell Wireless
Facilities) shall be $250.00 for a five-year license.
Section 4.The refundable franchise negotiation depositshall be $5,000.00;
Page 1 Council Bill No. 3138
Resolution No. 2162
48
Section 5. The usage fee shall be as follows, to the extentpermitted under
applicable law:
ServiceUsage Fee Rate
Electric:Provides services to customer within 5% of gross revenue
Woodburn via owned or non-owned facilities
located within the City’s ROW
Natural Gas:Providing services to customer 5% of gross revenue
within Woodburn via owned or non-owned
facilities located within the City’s ROW.
Cable Television 5% of gross revenue
Communications*(other than Small Cell 7% of gross revenue
Wireless** Facilities):Providing services to
customer within Woodburn via owned or non-
owned facilities located within the City’s ROW
Attachment fee (other than Small Cell Wireless**$5,000 per attachment per year
Facilities)
Small Cell Wireless**Communications Facilities$270.00 per attachment per year
Usage of owned or non-owned facilities inthe $3.00 per linear foot of Utility
rights-of-way for purposes other than generating Facilities in the rights-of-way or a
revenue or providing services to customers within minimum annual fee of $5,000.00,
the City.whichever is greater. The per-
linear-foot fee and the minimum
fee shall increase 3% annually on
st
July 1of each year, beginning
July 1, 2022
“Gross Revenue” shall have the meaning defined in the Utility Services
Ordinance.
Section 6: The annual attachment fee(excluding Small Cell Wireless
Facilities) shall be $5,000.00per attachment. The attachment fee shall increase
st
of each year, beginning on July 1, 2022.
3% annual on July 1
Section 7: The annual attachment fee for Small Cell Wireless Facilities shall
be the fair market value of such attachments, but until the Federal
Communications Commission September 26, 2018 small cell order is overturned,
City staff are directed to establish what the reasonable approximation of costs
for such attachment are, but it nocase less than $270.00 per attachment, per
year.
Page 2 Council Bill No. 3138
Resolution No. 2162
49
* "Communications" shall have the meaning defined in Woodburn’s Utility
Service Ordinance and shall include telecommunication utilities, long distance
providers, private networks, wireless, wireline, VoIP, ILEC, CLEC, inter and
intrastate.
** "Small Cell Wireless Facilities" shall have the meaning defined in
Woodburn’s Utility Service Ordinance.
Section 8. The fees implemented by this Resolution take effect on January
1, 2021.
Approved as to Form:
City AttorneyDate
APPROVED:
Eric Swenson, Mayor
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST:
Heather Pierson, City Recorder
City of Woodburn, Oregon
Page 3 Council Bill No. 3138
Resolution No. 2162
50
Agenda Item
November 23, 2020
To: Honorable Mayor and City Council through City Administrator
From:Chris Kerr,Community Development Director
Subject:Call-Up Briefing:Planning Commission approval of a Design Review
andException to Street Right-of-Way and Improvement Requirements
(“Street Exception”)application package forWoodburn Urgent Care
at 2902 Tom Tennant Drive (DR 2020-06 & EXCP 2020-07)
RECOMMENDATION:
Staffrecommends noactionand briefs the Council on this item pursuant to
Woodburn Development Ordinance (WDO)Section 4.02.02.The Council may call
up this item for review if desired and, by majority vote, initiate a review of this
decision.
BACKGROUND:
The subject property is within the
Commercial General (CG) zoning
district and Interchange
Management Area (IMA) Overlay
District. The proposal included a
Design Review to construct a new
4,000 square foot urgent care clinic
with on-site landscaping and
parking improvements and aStreet
Exception forfrontage
improvements along Tom Tennant
Drive.
Site Plan
Agenda Item Review:City Administrator ___x___CityAttorney __x____
51
Adigital rendering of the proposed building.
The Planning Commission held a public hearing via the GoToMeeting virtual
meeting platform on November 12, 2020 and unanimously approved the
application package with the conditions recommended by staff. No parties
testified in opposition to the proposal.
52
Agenda Item
November 23, 2020
To: Honorable Mayor and City Council through City Administrator
From:Chris Kerr,Community Development Director
Colin Cortes, AICP,CNU-A, Senior Planner
Subject:Call-Up Briefing: Planning Commission Approval ofConditional Use,
Design Review, Property Line Adjustment (as lot consolidation), Street
Exception, and Variance Applications for Templeton Apartments on
five lots at 1430 E. Cleveland Street (CU 2020-01, DR 2020-02, EXCP
2020-04, PLA 2020-02, & VAR 2020-02)
Recommendation:
Staff recommends noactionand briefs the Council on this item pursuant to
WDO) Section 4.02.02. (The Council may
Woodburn Development Ordinance (
call up this item for review if desired and, by majority vote, initiate a review of
this Commission decision.)
Background:
The Planning Commission held a public hearing on November 12, 2020and
unanimously approved the consolidated applications package (Type III) with
published
the conditions recommended by staff through the staff report
November 5 and the staff addendum memoof November 10, except for the
seven revision items described below in the “Approval with Revisions” section.
Staff next provides a few sections of project background that lead up to and
give context to the revisions.
Images
See the next few pages for an aerial photo, a site plan, and building facades.
53
Aerial map (2016) with site outlined in green
Page 2 of 7
54
Site plan (Note: Staff colored the applicant’s landscapingplan)
Page 3 of 7
55
Building facades in color
Project Description
Theproject is site redevelopment of 1.86gross acres into 42apartments across 4
buildings. The buildings are three-story walk-ups, conventional for new
construction. (There is no common building or on-site leasing office.)
Street Improvements
Street improvements for this project consists of upgradeof street frontage to
bring existing E. Cleveland Street – which has curb-tight sidewalk –and Hooper
Street into greater conformance with the model / standard cross section of
WDO Figure 3.01D.
The chief visible results will be a wide planter strip along existing curb and a wide
sidewalk.
There are additional public off-site street improvements the developer will
construct or fees in-lieu that the developer will pay to advance walking, cycling,
and local and regional transit.
Zoning
The subject property is in the Commercial General (CG) zoning district. In the
CG district multiple-family dwellings are prohibited in some areas of the district
(near I-5) and a conditional use (CU) in others including onthe subject property
because of Council adoption of Ordinance No. 2573 on June 24, 2019.
Page 4 of 7
56
Variances
The one variance request wasto vary from WDOparking stall length minimum.
Approval with Revisions
The seven Commission revisionsareto:
1.Revise ConditionD9a to not require irrigation were the developer to
propose xeriscaping (that is, drought-tolerant landscaping).
2.StrikeCondition CU4b that would have arranged the two proposed building
exterior wall colors as horizontal bands instead of a checkerboard-like
pattern.
3.StrikeCondition CU4e(5)and its exhibitsthat would have require three
additional windows on the blank area of each side façade and an
additional narrow window at each apartment dining area.
Exhibit CU4e-1; additional windows in blue rectangles; revised proportions in solid blue
rectangles
Page 5 of 7
57
Exhibit CU4e-2; additional windows marked and circled in blue
Exhibit CU4e-3; exact example of windows provided through DR 2019-04 5th Street Apts.
4.StrikeCondition CU5f that would have required a 12-foot wide picnic shelter
in the south rear yard.
5.StrikeCondition CU6 that would have required a pair of electric vehicle
(EV) parking stalls with a charging station.
6.Revise tree preservation Conditions CU7d(1) & CU11b to allow the
developer to avoid preservation if the tree is either (a) not a Significant Tree
as WDO 1.02 defines or (b) a Significant Tree that is terminally diseased or
dead as a certified arborist documents; and
7.Revise Condition CU7 to append a part “e” requiring shrubbery and 6-ft
wood fence to screen the property where it adjoins the backyard of 1450 E.
Cleveland Street.
Testimony
Twoparties testified inoppositionto the project:
1.Olegario Gonzalez (1450 E. Cleveland St, Woodburn OR, 97071-5636); and
2.Margaret A. Schoessler (367 Ben Brown Ln, Woodburn, OR 97071-5507).
Mr. Gonzalezwrote about and voiced concerns about:
Backyard privacy/screening;
Virtual meetings dissuading neighbor participation; and
Traffic.
Ms. Schoessler voiced oppositionabout:
Page 6 of 7
58
The number of new apartments across town; and
Traffic.
Appeal
Any of the three parties with standing can appeal the Commission final decision
per WDO 4.02.01B, and the Councilwould hear an appeal.
Page 7 of 7
59