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City Council Minutes - 01/17/2017 44 City ofTigard Tigard City Council Meeting Minutes January 17, 2017 1. WORKSHOP AND BUSINESS MEETING A. Council President Snider called the meeting to order at 6:36 p.m. B. Deputy City Recorder Burgoyne called the roll. Name Present Absent Council President Snider ✓ Councilor Woodard ✓ Councilor Anderson ✓ Councilor Mayor Cook ✓ Councilor Goodhouse ✓ C. Council President Snider asked those attending to stand with him for the Pledge of Allegiance. D. Call to Council and Staff for Non Agenda Items—None. BUSINESS MEETING ITEM 2. CONSIDER LOCAL REVIEW BOARD CONTRACT AWARD FOR 118THAND DERRY DELL CREEK PROJECT City Manager Wine discussed the details of the contract, qualifications of the firms who submitted proposals,ranking guidelines and staff's recommendation for approval. Council President Snider called for a motion for the Local Contract Review Board to award the contract for 118` and Derry Dell Creek Project. Councilor Woodard motioned to approve awarding the contract for 118`h and Derry Dell Creek Project and Councilor Goodhouse seconded the motion. Motion passed by a unanimous vote. Name Yes No Council President Snider ✓ Councilor Woodard ✓ Councilor Anderson ✓ Councilor Mayor Cook (absent) Councilor Goodhouse ✓ TIGARD CITY COUNCIL MEETING MINUTES—January 17, 2017 City of Tigard 1 13125 SW Hall Blvd.,Tigard, OR 97223 www.tigard-or.gov I Page 1 of 6 WORKSHOP MEETING ITEMS 3. RECEIVE COUNCIL REQUESTED TRAINING ON LAND USE AND QUASI-JUDICIAL DECISIONS City Attorney Ramis discussed areas of concerns and issues that could arise during land use and quasi-judicial hearing procedures, and the best ways council can handle each situation in order to make good decisions and stay within procedural rules. He went through each area of concern. 1. Ambiguity in the Law: Is when the code criteria is not clear and can lead to interpretation. This typically happens with Comprehensive Plan amendment cases where comp plan goals can conflict with policies. Mr. Ramis said in situations like this,it is best if council explains their interpretation and allows all parties an opportunity to state what their interpretation is. Assistant Community Development Director McGuire added that staff should be providing council with their interpretation of code criteria. Mr. Ramis said that council always has the ability to amend the code,but to keep in mind these amendments would apply to any future development as well. Council President Snider asked if this is an area city council struggles with. Mr. McGuire said this has come up a few times in the past and that due to some competing language in the code,interpreting the code can be somewhat difficult. 2. The Reversal: This can occur when city staff, the Planning Commission and Hearings Officer are favorable towards an application and council does something different-while this is ok,it is often because there is a technical problem. Mr. Ramis discussed staffs role vs council's role and suggested council initially make a tentative decision,direct staff and city attorney to write their findings and have staff come back to council for final adoption. Council President Snider asked if this solution is good practice and if it works. Mr. Ramis replied that it is and is part of the deliberation process. Mr. McGuire asked that council be as clear as possible when directing staff to write findings. Councilor Anderson stated he thinks the applicant would want to come back a second time to address any issues. City Manager Wine said a couple of times the applicant has offered to write findings and asked the city attorney what the best course of action would be in situations like this. City Attorney Ramis said he likes to see anything and everything that might be useful and thinks that if the applicant would like to submit something it's fine,but that city staff and the city attorney would be the people to write the final findings. Councilor Goodhouse said that sometimes it can be difficult for council to get across what they want and asked staff how they would like council to communicate in a way to make sure the applicant understands council's decision. City Manager Wine said it would be helpful for staff to ask questions clarifying council's decision,then staff can summarize and poll council for a consensus on their decision before coming back. TIGARD CITY COUNCIL MEETING MINUTES—January 17, 2017 City of Tigard 1 13125 SW Hall Blvd.,Tigard, OR 97223 www.tigard-or.gov I Page 2 of 6 3. The Rules Lead to a Bad Result: This can occur in the course of council deciding on an individual application and the code could lead council to a situation council doesn't want to see happen. In order to resolve this situation, council could find something ambiguous to rely on. These cases where the outcome is dictated by code are difficult cases and one's that often lead council to see problems in the code that need amending. 4. The New Plan: Sometimes late in the review process the applicant provides revisions to the development plan. This is ok. Mr. Ramis said we accept new evidence and it's not unexpected in Tigard that this could happen,however, the question to ask is if the change is so great that it would require a new application and analysis from staff;making staff's initial analysis inefficient. Mr. Ramis discussed the noticing requirements and if the amendment would change the use,then additional noticing may be required. Assistant Community Development Director McGuire said that this kind of situation recently occurred and in this particular case, staff relied on the notice. He said staff is currently working on how to proceed when a change to the application would constitute a new application. 5. I Didn't Get Notice: This is when a witness in the hearing objects to the hearing process claiming they didn't receive notice of the hearing. A related question could be if one person didn't receive notice,are there more who didn't. Mr. Ramis said the city council handles this well and Mr. McGuire explained what process staff follows for noticing. 6. The New Evidence: This occurs when new information comes forward after the record has been closed. Mr. Ramis said council could take a rigid position on this and once the record is closed,it's closed,no exceptions;or council could re-open the record for new testimony. Councilor Anderson asked if there is a way to get monetary damages if the new evidence submitted requires significant staff time. Mr. Ramis said it's possible and council could consider it. 7. Unusual Witness:When a case has been before the Planning Commission prior to coming before council and one of the Planning Commissioners testifies as a regular citizen at the city council hearing in opposition of what was recommended at the Planning Commission hearing. Mr. Ramis said there is a public concern that this person is in a role of deciding the commission's recommendations one day and then testifies differently before city council another day. Councilor Goodhouse asked if this would be handled under council ground rules or under council policies. Mr. McGuire gave an example of someone on the Planning Commission being in the minority with their vote,then going to council and speaking as a citizen in opposition of the Planning Commission recommendation. Councilor Woodard said that under this situation he thinks this would create a conflict of interest and would like a policy put in place. The City Attorney and staff would look at how they proceed with creating a policy for this. TIGARD CITY COUNCIL MEETING MINUTES-January 17, 2017 City of Tigard 1 13125 SW Hall Blvd.,Tigard, OR 97223 www.tigard-or.gov I Page 3 of 6 8. What Were They Thinking:This can occur when the outcome of a case was applied to code interpretations from a previous council and current council considers that interpretation to be wrong. He said it does happen, and on one hand, the legal argument is that you need to consistently apply previous interpretation from earlier council,however,the courts and LUBA have been more sophisticated recently,and are taking a position that it's ok to change the interpretation as long as the actual provision isn't changed. Councilor Anderson asked if there was a time limit attached to this. Mr. Ramis replied,no, that if the interpretation is out there,it has to be looked at,but that council is free to interpret the code differently. 9. Final Written Argument: At the close of a hearing,the applicant submits their final written argument which includes new evidence that was never previously submitted. He said this is not prohibited,because an argument is not actually new evidence. He suggested that council allow all parties and city staff the opportunity to respond, especially if there is still time remaining on the 120-day clock. Mr. Ramis said that if they are up against the 120-day clock and the applicant does not consent to extending the clock, council will need to weigh their options. Mr. McGuire said there is also a limit to how many times an applicant can extend the 120-day clock,and it's possible they could be out of time. 10. Time is Running Out: When an opponent asks for new evidence this does not stop the 120-day clock,but when the applicant requests new evidence it does stop the clock. Mr. McGuire explained that in most cases the applicant is willing to extend the 120-day clock. Council asked what the final deadline is including extensions to the 120-day clock. Mr. Ramis said they would look into that and let council know what the final deadline is. 11. Sherlock Holmes: This can happen when a council member interviews other agencies and people about their opinion on the quasi-judicial case once the evidentiary hearing is closed. Mr. Ramis said that council cannot do this, and that the hearing would need to be re-opened and re-noticed to allow people an opportunity to respond. If council has questions,he suggested they ask staff or the parties in the case to go out and get the answers. Councilor Goodhouse said it would be helpful to get information as far in advance as possible when something is scheduled to come before council. City Attorney Ramis agreed,but said that sometimes, especially in land use and quasi-judicial cases,information will come to staff in the final hours before the scheduled hearing. City Manager Wine reminded council that with any agenda item, council always has the option to ask the Mayor to table an item or take a break in order to review information. She does not want council to feel rushed. Council President Snider asked if staff could set the deadline for submitting additional information to the day prior to the meeting. Mr. Ramis replied that yes the deadline could be revised to submit additional information twenty-four hours in advance,but that people still have the opportunity to testify the night of the hearing. All agreed. Mr. Ramis also suggested that for longer cases, council could call for a brief break prior to the completion of the evidentiary procedure. He said that many jurisdictions will take a break after all testimony is taken,but discouraged council from doing that because the public perception could be that TIGARD CITY COUNCIL MEETING MINUTES -January 17, 2017 City of Tigard 1 13125 SW Hall Blvd.,Tigard, OR 97223 www.tigard-or.gov I Page 4 of 6 council is deliberating when they are not. 4. DISCUSS PROPOSED IGA ON FUTURE GOVERNANCE BETWEEN LAKE OSWEGO AND TIGARD PARTNERSHIP Tigard Water Partnership Project Director Koellermeier presented this item. He discussed the progress being made with Lake Oswego regarding the IGA partnership and said during the Oversight Committee's review, the work group evaluated five potential models and that they had narrowed that down to two models. He explained each of the two models, discussed the draft agreement that was included in council's packet and provided information on the one model Tigard favors and why. He said the draft agreement had also been presented to Lake Oswego's city council. Mr. Koellermeier said they were working to establish quality standards and creating a good relationship with Lake Oswego. The timeline for being operational once there is consensus from both city council's is the beginning of the fiscal year. City Manager Wine said staff is working on scheduling a joint workshop with the City of Lake Oswego to discuss the draft agreement and anticipates this happening within the next month. Councilor Goodhouse asked if there are options for creating a new entity for managing the agreement. Council President Snider said there would be two to three councilors from each city. Councilor Anderson asked if creating a third party to oversee the agreement is a new element. Council President Snider provided background information on how and why they were at this point. Mr. Koellermeier explained this was a big issue and the recommended change is coming before council because originally the agreement was a construction agreement and at that time,the City of Lake Oswego was the stronger partner as they had just completed a large capital program. Now, they are in need of an operational agreement and this was a good time to review the agreement, see how they proceed moving forward and how to govern the partnership in the future. He said that since 2008, changes to the agreement have been done by amendments. Councilor Woodard thinks a governance model that balances out the playing field is a good model. Council President Snider said this could create a serious perception problem with Tigard residents and that there is a real level of input and control. He said to some extent this could insulate Tigard from random political changes that may happen in another jurisdiction that potentially could affect the relationship between jurisdictions. His responsibility is to the residents of Tigard and he would go to bat on this if he needed to. Councilor Goodhouse asked what would happen if they are unable to come to a mutual agreement. Mr. Koellermeier explained the current agreement has a dispute resolution imbedded within that would guide them,and that until there is a new agreement in place,the existing agreement is what is in place. TIGARD CITY COUNCIL MEETING MINUTES —January 17, 2017 City of Tigard 1 13125 SW Hall Blvd.,Tigard, OR 97223 www.tigard-or.gov I Page 5 of 6 5. NON AGENDA ITEMS—None. 6. EXECUTIVE SESSION—None. 7. ADJOURNMENT At 7:56 p.m. Councilor Goodhouse motioned to adjourn the meeting and Councilor Anderson seconded the motion. Motion was approved by unanimous vote of council. Name Yes No Council President Snider ✓ Councilor Woodard ✓ Councilor Anderson ✓ Councilor Mayor Cook (absent) Councilor Goodhouse ✓ Ke y Bur ne,Depu Ci Recorder est: Ja Snider, Council President Date: --) /3��a C 1 7 TIGARD CITY COUNCIL MEETING MINUTES —January 17, 2017 City of Tigard 1 13125 SW Hall Blvd.,Tigard, OR 97223 www.tigard-or.gov I Page 6 of 6