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City Council Packet - 08/12/1974 i 4 w � v'+. v ,gym}� '_�_ t u - # MEN TIGARD CITY COUNCIL R::GIJLAR MEETING'' AUGUST :12, 1974,1 '-30 P:.M. CHARLES F. TIGARD GRADE SCHOOL' ADMINISTRATION OFFICES AGENDA. 1, CALL TO ORDER 2. ROLL CALL 3. PLEDGE OF 'ALLEGIANCE 4, APPROVAL OF MINUTES, July 22, 29, August. .5; 197- 5. WRITTEN COMMUNICATIONS 6. APPROVAL OF EXPENDITURES S -LNVESTMENTS. S106 ',16>99 7. PRESENTATION Repret:e,tativvcs of 72nd, Haines & 217 area. 8. AUTHORIZE REFUND HOLLCRAFT HOMES, INC. - Building'Pccrut Fee $134.00, Sewer Permit,and Inspection Fe, S-'25.00. (H). Recommendation of City Adutir.islrator. 9. RESOLUTION-No, 74- RESOLUTION OF I'HE:TIGARD.CITY COUNCIL ADOPI;NG A BUS PASSENGER SHELTER COOPERATIVE AGREEMENT rAS.PROPOSED BY THE TRI-CO' METROPOLITAN TRANSPORTATION DISTRICT OF:'OREGON (:TRI.^MET). 10. AWARD OF BID'.OPENING - S.W. StreetL.I.D. (a) Recommendation of DirccLot cf Publtr;'Services and Facilities, 11. APPEAL OF PLANNING COMMISSION CONDITIONS OF APPROVAL OF MINOR LAND PARTITIONING - Richard Pike. (a); Setting of Public Hearing, 8,00 P.M., August: 26, 1974, 12. RESOLUTION No. 74--. A RESOLUTION OF THE TIGARD CITY COUNCIL MAKING AN . .APPOINTMENT TO THE PLANNING COMMISSION. (a) Recommendation of City Administrator. 13. REPEALING TIRE. RETREADING AS A CONDITIONAL USE IN A C-3 ZONE (a) Setting of Public Hearing 8.00 P.M., August 26, 1974, 14. ORDINANCE Nr,. 7Z--4f) AN ORDINANCE AMENDING CHAPTER 18.52 (_Industrial Park Zone M-4) OF THE TIGARD MUNICIPAL CODE TO INCLUDE TIRE RETREADING AS A PERMITTED USE AND PRESCRIBING AN EFFECTIVE DATE. (a) Second reading of ordinance, 15. FLOOD PLAIN ORDINANCE - An ordinance controlling fil.l.i.9g and development in the flood plain of Fanno Creek and its tributaries, as defined by the :.00 }'ear flood icvel on Washingtcn County Flood Plain Series Maps dated April, 1974. (a) 8:00 P.M. Public Hearing. 16. RESOLUTION No. 74--_ A RESOLUTION CONCERNING VACATION OF AN UNDEVELOPED 20 FOOT WIDE DEDICATED PUBLIC RIGHT-OF-WAY IN THE CITY OF TIGARD, WASHINGTON COUNTY, OREGON. (a) Setting of Public Hearing 8-00 P.M. September 23, 1974. (b) Recommendation OfDiTector Of Public Services & Facilities, 1.7. RESOLUTION N.. 71•• ARESO!UTI,ON CONCERNING VACATION .OF A DEDICATED PORTION -� - OF S.W. 107th AVENTIE IN THE CITY OF TIC-ARD, WASHINGTON COUNTY, OREGON. (a), Setting of Publi; Hsi g ?i:00 P.M., SeprFmber 23; 1974. (b) Recommendation of Dire-to., of Public S, • Lc cs & Faci'ities, 18. NOMINATING PETITIONS - CITY COUNCIL (a) Legal. .Op:nionby Lszal Counsel.. (b) Council Action, 19 . OTHER BUSINESS $ 20. CALL TO AUDIENCE FOR THOSE DESIRING TO SPEAK. 21. ADJOURNMENT.:. PAGE 2 - COUNCIL AGENDA - AUGUST '..1, 197L I [. _A REGULAR MEETING AUGUST 12, 191=., 7,30 P,Mo 1. ROLL CALL: Present: Mayor Floyd H. Berguann; Councildlm Jc;}.n E. Cook, Robert C. Moore, ,Charles L. Norton; Fred A. Anderson, Lrgal Counsel; Winslow C. Brooks',. City Planner; Bruce P. Clark,: City Administrator; Doris Hartig, Ciky Recd*der, Nick Hiebrrt, Director of.:"Public'.Services and FaciLities Donald L_ Rei,` PolLce Liemt.enant.. 2. APPROVAL OF MINUTES, July 22, '29, 197— (a) City Administrator requested the AM'Us ,L1l minut<s he deleted'i •ori the .,agenda. Minutes of .July 22, 29, lq7& approvkcd'as aubmi t led. 3. WRITTEN COMMUNICATIONS (a) None 4. APPROVAL OF EXPENDI'T'URES.& INVESTMENTS.$105,553,69 (a) ..Motion to: approve: Councilman Moore; seconded by Councilman Cook-, Approved by unanimous vote of Council present. : 5. PRESENTATION - Representatives of 72nd, Haines and 21.7 area. (a) Mr. Fred Fields, spokesman fnrgroup representing thei2nd Street, !f dhway..,217.interchange and more particularly;Mr. Hufschmidt of Western Foundry, Sid Reese of Lamb Weston, Mike Oberdorf of Farmers `Insurance and Del Ball of:Del Ball Ford,:business men in area requesting City support construction of a 4 Leaf clover interchange for Highway 217 and 72nd.. Street area. Mr. Fields spoke of projected traffic and requested City general approval. Tony'Maksym testified against the,request for 'approvement as he felt the residential area in Rolling Hills should be protected. Council expressed,their concern over the traffic problem in the industrial and residential areas. City Administrator recommended Council go on record with the County, State.of. Oregon and CRAG regarling their concerns and that .the proposed development be favorable to both residential and industrial needs. (b) .Motion by Councilman Moore to instruct staff to.prepare resolution for consideration at next council meeting;seconded by Councilman Moore.0,,'A - Ff cs,C.x.p� c _-1-1,:_..,(, / &/"c/�. Approved by unanimous vote of Counci.I p;:c-ent, 6. AUTHORIZE REFUND Holl.craft Homes I.nc. - Building Permit Fee $134.00; sewer permit and inspection fee $525. (a) Motion to authorize refund. Councilman Moore, seconded by Councilman Cook.. Approved by unanimous vote of Council. 7. RESOLUTION No. 74-44 RESOLUTION OF THE TIGARD CITY COUNCIL ADOPTING A BITS PASSENGER SHELTER COOPERATIVE AGREEMENT AS PPCIPOSEU BY y THE TRI-COUNTY METROPOLITAN TRANSPOR ATION DISTRICT O"r OREGON (TRI-MET). (a) Motion to adopts Councilman Cook, seconded by Council*,.a+: t Approved by unanimous vote of Council present. 8. BID OPENING S�W, MURDOCK STREET L.I.D. (a) 'Director of Public Services and Facilities rcportcd'the rotlowing bids were received and recommended the contract be awarded to the Low.biddcr, Miller and Sons, in the ,amount of $L4,054.60. :.Bunyard d Pettit Miller h. S,,ns 7530 N:E.*Glisan Route 3,, Box 62 Portland, Oregon 97213 Sherwood, Oregon 97140 $18,584.00 $14,054.60 NoBond-Submitted .`:.Bid Bond Fnciosed _ Montie Montgomery 'Roger Shearcr.F.xcavating n Br,ekhc:~ 73.55 SE ,Johnson Creek Blvd. P. 0, Box o,i Portland, Oregon Gresham, Ore, 97030 $24,868.00 $18,410.uO Bid Bond Enclosed Bid Bend'EncLoscd V S R Excavating Cn. 042 N.'Pacific Hwy, Woodburn, Oregon $18,704'.60 ' ..Bid Bond Enclosed (b) Motion by Councilman Moore to award the contract to.Miller and Sons in the amount'of $14,0.54.60; seconded by.Councilman,Cook. Approved by unanimous vote of Council present. 9. APPEAL OF PLANNING COMMISSION CONDITIONS OF APPROVAL OF MINOR IAND PARTITIONING Richard Pike (a) : Setting,.of Public Hearing 3.00 P-M. August 26, 1974 '. (b) Motion to setpubLie hearing:. Councilman Norton, seconded by Councilman Cook. Approved by unanimous,votF, of Council present. 10. RESOLUT10N No. 74-45 A RESOLUTION OF THE T:IGARD CITY C01!:NC1L MAKING AN APPOINT- MENT TO THE PLANNINGCOMMISSION. (a) City Administrator reported the Interview Committee recommended the: appointment of Allan :Popp to serve on the .Planning Commission for a . term.expiring 7/L/78,- -. - RM (b) Motion to adopt,- Councilman Norton; seconded by Councilman Moore. Approved by unanimous vote of Council present. 11. REPEALING TIRE RETREADING AS A CONDITIONAL USE IN A C-3 ZONE (a) Setting of Public Hearing 8e0O P:M. August 26, 1.974. (b) Motion to set public hearinga Councilman Norton, seconded by Councilman Moore. Approved by unanimous vote of Council present. 12. ORDINANCE No. 74-46 AN ORDINANCE. AMENDING CHAPTER L8.52 (Industrial Park Zone M-4) OF THE TIGARD MUNICIPAL. CODE TO INCLUDE TIRE RETREADING AS A PERMITTED USE AND PRESCRIBING AN EFFECTIVE DATE, (a) Second reading of ordinance. (b) Motion to adopt-, C,ounCilman Cook, seconded by Councilman MOrc, Approved by 3-1 majority vote of Council present. Roll Cal-1 cf vote as follows: Mayor Bergmann, AYE; Councilman Cook, AYE, Councilman Moore, AYE; Councilman Norton, NAY. PAGE 2 - COUNCIL MINUTES - AUGUST 12, 1974 rs: e ' 13. FLOOD PLAIN ORDINANCE -''AN ORDINANCE CONTROLLING ri1LLNG AND DEVELOPMENT IN THE FLOOD PLAIN OF FANNO CREEK.:AND TIS".TRIBUTARIES, AS DEFINED.BY THE 100 YEAR:FLOOD LEVEL ON' WASHINGTON COUNTY "FLOOD PLAIN SERIES MAPSDATED:APR 11, 11)74; (a) 8:00 P.M. Public [fearing.- Film was shown with respert to f"__c!ding probl-fis and proposed ordinance ' was reviewed by City.PLaoner. Those who( testtfi..cd. -:Alex Arseniev of.Slcavirt;.- Kor9, -->ulIing enginerrs. Bill Heppnfr Roy Shaw l!a'. Stoltz Joe S;.hul.te Al Tl_mas Ji.m Bishop _ Tony Maksym Public Hearing Closed. Council 'discussed cleanup work in Fanno..Creek area prior to winter rains. (b) Motion by( Councilm.ri Nor[..n Lo in'�tTnCt.staff to prepare resnlutic.n to register City'_ c , ern with C.S.A.; seconded by Councilman Cook.' Approved by unaniwous vbtc- of (c) Motion hy:Ctyu*rcil-man C;,ck that flood plain ordinance he prepared for next Council tdeetrng, scconded,by:Councilman Norton. Approved by unanimous vote of Council present. 14. '.RESOLUTION No. 7Z;-16 A RESOLUTION CONCERNING VACATION OF AN UNDEVELOPED 20 FO0T WIDE DEDICATED"PIBI.I.0 RIGHT-OF-WAY IN THE CITY.OF T-IGARD.,.WASHINGTON COUN'T'Y, OREGON, (a) Director of Public Services and Facilities recommcnded'setting of public hearing for 8.00 P.M. September 23, 1974. (b) Motion to adopt-, Councilman Moore, seconded by Councitman Cook. Approved by unanimou- vote of Council. present:. 15. RESOLUTION No. 74-41 A RESOLUTION CONCERNING VACATION OF A DEDICATED PORTION OF S.W, 1.6?thAVENUE 1N THE CITY OF TIGARD, WASHINGTON COUNTY, OREGON, (a) Director of Public Services and Fs:.iiiti.es setting of Public. Hearing for 8:00 P.M, September 23, L97_., (b) Motion to adopt.; C.ouncitc.a*: Moore secs riled by CcuntiLman N.,rtr,r.. ,...& Approved by unani.mcu� v;:te <f Ccuncil preaent, LG. NOMINATING PETITIONS - City Ccuncil (a) Before opening this item for discussion. Mayor Brlrgma—t stated he would abstain from voting, however would :hair the eetine, and read a stater.,« proposing a special election be. field to 0—ange the resid<rcy requirements with respect to candidates. Living in reeently annexed meas. Attorney Andetson stated that his Legal. opinion was. that. the.charter requirement of one year Lesi.den y desqualified the Roll.ing.HiLl_s & DErry Dcll candidates and di.scu sed various alrernatives through court proceedings that would decide the issue, PAGE 3 - COUNCIL MINUTES - AUGUST 12, 1974 L 16. (cont.) Proposed chatter amendment was discussed by AttorneyAnderson, Council, `Mr. Bishop, Mr, Maksym, Bett.y.;.Pardow, Brent Bishop. (b) Motion by Councilman Cook to Instruct.Attorney Anderson to prepare an ordinance to submit to the voters a charter amendment to allow the citizens who have lived one .year in the annexed areas anopportuni..ty to run for Council positions; motion seconded by Councilman Norton. .Approved by unanimous vote of Council;presr.nt with Mayor Bergmann abstaining. 17. OTHER BUSINESS' A. Mayor Bergmann called a special meeting of Council for Wednesday :August 14, 1974 at 7:30 P,M.. at City,Hall for'..the purpose of .canvassing the vote, reviewing and revi,ing the budget if necessary,-and to considerthe adoption of an ordinance calling for election charter. toamend the B. RESOLUTION No, 74-48 'A RESOLUTION OF THE TIGARD CITY COUNCIL AUTHORIZING THE CHANGE OF NAME FOR THE.TIGARD C.IT.IZEN-:POLIC.E COMMUNITY RELATIONS COUNCIL TO TIGARD - CITIZENS -AND POLICE (T-CAP) (1) Motion to adopt: Counuilman Moore, seconded by Councilman Norton, Approved byunanimeus vote of Council present. C. ADJOURNMENTS 11:05 P.M. 41 -otder ATTEST: Mayor PAGE 4 COUNCIL MINUTES - AUGUST 12, 1974 BILLS PRESENTED FOR PAYMENT AUGUST 12, 1974 General Fund - U. S. National Bank Check No. 1.5373 Rogene' Regehr - budget election 10) 34.00 15374 JoAnn Grund - budget election RO) 34.00 15375 Doris Cooper - budget election 10) 34.00 15376 Beulah Butterfield - budgetelection RO) 34.00 15377 Barbara Memovich - budget election (10) 34,00 15378 State of Oregon license suspension (11) 55.00 15379 Clarence & Bernadine M. Wiese witness fee ll 12.80 15380 Petty Cash travel expense, postage, mise. office60.49 supplies (19) 5.45 (10) 5.00 (13) 18.22 (17)` 2.50 (21) 5.00: (12) 9.00 (15) 14.92 _(18) .40 15381 Roger Thomssen recording fees 21) 45,00 15382 Larry Klanz - fee for defending Barbara Ornduff. 11) 50.00 15383 Raag� Thomsaen recording 21) 12.00 15384' ASE Supply, Inc. - cylinder head gasket, muffler for Toro mower (17) 19.85 15385 Beaverton Printing - mechanical permits &' masters (13) 139.00 15386 Mr. C's photo - film processing, (16) 13.80 15387 Casey Tractor & Equip. - box rivets bar mower (20) 1.35 °15388 Electronics; Div. Precinct books for June 20 and July' 16th' elections (10) 30:90 15389 ` Columbia Maintenance janitor service (18) 198.02 `(16) '44.00 242.0 15390 Ma ryatt Ind. - laundry (20) 36.00 15391; Lois Louis Heide' - witness fee (11) 5.00 1:5392 Public Employees Retire - social security(10) 9.57 (14) 166.74 (16.3) 54.99 (21) 148.49 (11) 34.57 (15) 63.04 R17 44.05 (612) 2185.45 (12) 104.63 1.6) 1048.17 8� 21.29 (13) 144.92 (16.2) 161.24 (19) 183.75 4370.90 15437 US National bank - fed. withholding (613) 5716.16 15438 State of Oregon - state it (614) 1870.45 15439 American United Life Ins. - palice ins. (618) 107.25 (16) 16.20 (16.2) 2.70 (16.3) .90 127.05 15440 0 regon Admin. Co. - accident ins. (619) 40.29 15441 WashCo. Fed. Credit Union - payroll deduct. (699) 375.00 15442 Police Officers Assoc - payroll deduct. (611) 194.50 15443 U.S. National Bank Bonds (610) 131.25 15444 Travelers Ins. Co. - retirement (10) 4.91 (13) 9.81 (19) 69.54 (12) 4.91 (15) 26.50 (21) 56.52 (608) 206.19 378.38 15446 ICMA Retirement - City Manager (104) 48.75 (608) 49.66 98.41 15447 Bankers Life - police retirement (608 1014.05 15448 Roger J. Thompson - witness fee (11 13.60 15449 Sharon L. Lewis - witness fee 11 8.00 15450 N. W. Natural Gas - utilities (15) 5.97 (18) 6.20 (20) 6.68 (16) 3.66 22„ 15451 Peter's Office Supply - file jackets (13) 25.76 15452 Physicians & Surgeons - lab work - physical exam - P. Samuelrich (18) 6.00 15453 Portland General Electric - utilities (15) 10.83 (17) 66.66 (18) 119.80 (20) 29.79 (16) 49.81 276.89 454 City of Poutland - wiping rags (20) 34.00 :15455 Rentex Corp. - laundry (15) 16,45 (16) 11.00 (18)41.55 69.00 15456 Shell Oil Co. - super shell (13) 19.63 (19) 10.12 29,75 15457 J. N. Tarro, MD - Samuelrich - physical:'` exam 18) 74,00 15458 J. Thayer Co. - journal & Ledger forms 21) 27.67 15459 City of Tigard - utilities 16) 9.00 5 i 15460 Tigard Water Dist. - util. i7 19.60 15461 Times Litho Print - 1500 ballots �10�} 60.45 15462 Times Publications - notice of public hearing special elections ( (10) 28.68 15463 Valle Auto Parts - spray paint, screwdriver (17) 5.94 (20� 3.88 9.82 15464 Whitcher Print & Stationery - bldg. permits - 'credit (12) (2.70) (13) 213.20 210.50 15465 Wilsey"& Ham - professional services (20.1) LID 115th 234.00 15466 Nick Hiebert - travel (19) 34.10 15467 Pargas; - rental (12 5.00 15468 Shell Oil Co. - super shell (13) 19.63 (19) 10.12 29.75 35469 A-Boy West ,- plumbing supplies (17) 24.78 15470 Carl H. Buttke- 'FinalBill Engrs. Service (14) 150.00 1.5472 Dept. of Commerce - surcharge billing (623) 40.08 15473 Durham & Downey - printing (14) 18.00 15474 HalraAuto Supply - `auto parts (13) 6.82 (ll) 46.92 (20� 4.50 58.24 15475 Northwest Action & Enterprises - tow bill 16) 17.00 15476 ' Power Rents - trailer & trencher rental 17) 45.00 15477 TIMES Publication - abandoned property sale (16) 32.03 15478 Xerox equipment rental (16) 2.31 (10) 37.23 (12) 44.00 (14) 54.85 (19) 13.61 (11) 9.48 (13) 18.08 (15) 1.08 (21) 2.93 183.57 July,payroll 25,323.64 2,330.07 Sewer Fund - U. S. National Bank Check No. 25 3+3b _Public employees retire bal. soc. sec. (101) 86.62 173.24 (612) 86.62) 15437 US Nat'l. Bank federal withholding (613) ?_15.20 15438 State of Oregon '- state " (614) 78.90 15440 Oregon Admin Co. - accident ins. 619) .91 15444 Travelers Ins. - retirment (104)28.11 (608) 18.74 46.85 15462 Times Publication - Invitation for bids (31-340) 17.84 2917 Daily Journal of Commerce - Bid Purposes SW Murdock 52.00 LID - Murdock St. Sewer LSD 2919 Harris McMonagle - Mufdock St. Sewer LID 32.7-290) 722.00 15469 A-Boy West - plumbing supplies (210} 10.46 . 15474 Halray Auto Supply - auto parts (210) 17.84 2920 Aerial Mapping of Oregon - July services - mapping of Tigard (291) 12,000.00 2921 Oregon State Hwy. Dept. - sewer line relocation (410) 4,283.33 2922 Unified Sewerage Agency- monthly service (754-755) 22,362.49 July payroll1 076.95 1,+ Ol State Tax Street Fund - U. S. National Bank Check No. 80 Petty Cash - police vehicle maint. (21OP) 4.00 15436 Public Employees retire bd. - soc. sec. (101) 187.46 (612) 187.46 374.92 15437 U.S. National Bank - federal withholding 613 456.40 15438 State of Oregon - state withholding 614 150.74 5440 Oregon Admin. Co. - accident ins. 619 4.55 15441 Wash. Co. fed. cr. union - payroll deduct. 16091 103.00 15444 Travelers Ins. - retirement (104) 68.01 (608) 45.34 113.35 5456 Shell Oil Co. - super Shell ((210)) 37.22 210P) 632.23 (2loP2) 153.86 893.31 e 15463 Valley Autu Parts - side view mirror (� J) 29.95 15467 Pargas - rental & propane (210) 15.00 (21OP) 7.69 ,22.69 2718 Harris Uniforms - Jennings, Landis, Farmer -,uniform replacement (28OP) 2719 Sales Nine-T-Nine �- tail lights #6 bulb for police 257.85 vbhicle ( (210P) 1.65 e-120 Tigard Auto Body 2721 V`a'lley Communications - radio equip. (210 15,00 2722 Butler Tire - Michelin recaps 4 p' repair -Police 116.50 15468 ' Shell Oil Co. super Shell (210) 37.22 (210P) 632.23oP) 823.31 (21OP-2) 153. 0.18 86 15474 Halray Auto Supply - auto parts (210) 1.16 (220) ,ll.Leo 2725 (210P) 188.35 200.91 Tigard Auto Body - bumper 2726 Harris Uniformis - Officer Featherston's uniforms °280P) 84.00 2727 League of Oregon Cities - 3000 traffic citations 21728 Peerless Pacific 2112220 112.68 - 3l5 gt. galy. pipe (220) 480.68 2729 Portland Road & Driveway - 28.355 tons hot mix asphalt(220) 275.09 July payroll 2 00.89 P Federal Revenue Share - U. S. National' Bank' Check No. 291.9 Harris McMonagle - Commercial St. LID (290) 4,701.00 Geneval Obligation Bonds - U. S. National Bank 2723; Dept, of Finance & Admin. - Tigard Sanitary Sewer` (860) 10,000.00 (861) 1409.18 11,409.18 Bancroft Assessment Fund - U. S. National Bank 2724 First National - coupon .interest (8) 28.75 Total Checks Written for Expense 1 -g0 �vs`S:S3. G�i } BID OPENING AUGUST 9, 1974 4 :00 P.m. ! S.W. _lurdock St. L.I.D. i Bids were duly opened at (4 :00 P.m. in the Director of Public Services and Facilities Office and the following bids were 'received: Bunyard & Pettit $18,584.00 no exceptions 7530 N.E. Glisan Portland, 97213 No Bond submitted , Miller & Sons $14,054.60 no exceptions Rt �3, Box 62 Bid Bona Enclosed Sherwood, Oregon, 97140 MOntieMontgomery $24,868. 00 no exceptions 7355 S.E. Johnson Creek. Blvd Bid Bond Enclosed Portland, Oregon Roger Shearer Excavating & Backhoe $1,°,410:80 - no exceptions P.O. Box 653 Bid Bond Enclosed Gresham, Oregon, 97030 R '& R Excavating Co. $18,704. 60 no exceptions 1542 N Pacific Hwy. Woodburn, Oregon Bid Bond Enclosed City Recorder'' j` --- fi i LEE JOHNSON ATTORN6V GENERAL �- JAMES TO EY G-IAM �' � OG�uTY ATTORNCY GLNLH4L. DEPARTMENT OF JUSTICE C , �� W\0 APPELLATE DIVISION 101 STATE OFFICE: BUILDING SALEM. OREGON 97310 TELEPHONE: (503) 378.4402 August 2, 1974 The Honorable Mike Ragsdale State Representative- 6520 SW Murray Beaverton, Oregon97005 Re Opinion Request OP-3063 Dear Representative Ragsdale This is in response to your inquiry concerning interpretation and validity ,of certain provisions of the charter of the city of Tigard. These provisions relate to qualifications for election to city office. Chapter vI', Section :12 `diqualifies a person from holding an elective office: unless at the time of his election he is a qualified elector , and has resided in the City during the twelve months immediately preceding the election." i Chapter VI, Section 31 permits nomination for elective office of: I j " [a] qualified elector who shall have resided in the City during the twelve months immediately preceding the election. The question arises in connection with an individual who now lives within the city of Tigard, and who has lived at his present residence continuously for more than the twelve months required. ` But the area within which his residence is included was not a � part of Tigard for the entire period; it was annexed to the city within the twelve month period preceding the election in which he desires to be a candidate for city office. - Interpretation of the quoted language to determine whether or not -it would disqualify the prospective candidate is primarily a matter for determination by city election officials, on advice of -the City Attorney or retained counsel. Recourse to the courts would be available to a person who disagreed with the determination. However, since a question of constitutionality is involved, we furnish this opinion for their guidance. 1 The IJonorable Mike Ragsdale August 2, 1974 Page;Two The language, taken literally, does appear to disqualify the prospective candidate. But the city of Tigard is a fairly recent creation, incorporated in 1962 . We are led to believe that the quoted provisions were part of the original charter. If so, under a strictly literal construction no one ;could have been eligible for election to city office during the first twolve months of the city's existence, and for that', first election of officers, at least, the only reasonable construction of the language would be that it limited eli- gibility to persons resident for 12 months before the election interritory which ,.;as within the city at the time of election. It seems reasonable_to, us, in' that rcase, that the same inter- pretation would _still be valid. Similar provisions have been construed in exactly this manner in other cases. In McConnell v. '.Iarshall, 467 St 2d 318 (Ky App 1971) it was held that a recuirement of residency in a district for one year before election means one year at a, place which is in the district on election day. In Lindsey v. -Domingues, 217 Cal 533, 20 P2d 327 (1933) , district boundaries were changed, and it e:as:held in dictum that a personwho moved before the effective date of the chancre from a residence in an area trans ferred, to a residence in a:. area remaining in the district, would have,'been ' in compliance with the one year residency require- ment. in the new district had he not moved. Lindsev's actual holding, that the candidate was not an eligible candidate in the district of his new residence, was severely criticized 'and` in effect overruled in Wenke v. Hitchcock, 100 Cal Rptr 290, 493 Ptd 1154 (1972) , but nothing in that € case casts doubt upon the dictum in Lindsev. The rule appears to be that if a change of boundaries affects a residence , a f potential candidate may by moving before the effective date remain eligible in the original district, but if he retains ; his residence he becomes eligible for -candidacy in the new {{{! district. We are strongly influenced in our conclusion by the rule that in construction of laws relating to eligibility of candidates, t doubt must be resolved in 'favor of the candidate. McKinney v. Kaminskv, 340 F Supp 289 (D Ala 1972) . We are even more strongly influenced by our belief, approaching conviction, that a contrary construction of the charter provisions would be in _ violation of the Equal Protection Clause of the. Fourteenth Amendment of the United States Constitution. A durational residency requirement of one year or any period longer than necessary to complete voter-list preparation, etc. , has been held invalid as a requirement for voting in Dunn v. Blumstein, 405 US 330 (1972) . Durational residency requirements . j a The Ilonorab`le Al a Ragsdale 7wUust 2, 1974 Page Three I for candidacy or office holding, of excessive length, have been held invalid in Zeilenga v. Nelson, 4 Cal 3d x%16, 482 P2d 578 (1971) (five years) and Bolanoi•,ski v. Raich, _ 33 F Supp 724 (ED Mich 1971) (three ;years) . Sut we believe a one-year residency requirement in the district for candidacy or office holding to be valid, and it has been so held. Gralike v. Walsh, '483 'SW 2d 70 (Mo 1972) . The Oregon Constitution has such a requirement for candidates for election to the legislature. Or Const Art IV, §8; Roberts >v. -Myers, 260 Or 228 , 489 P2d 1148 (1971) The defect of a strictly literal construction of the charter Provision is that it would place residents of, areas newly annexed to the city in a second-class status with respect to other citizens. They could not become candidates for city office,, although_ other citizens could. They could not vote to be represented or be represented in office by their immediate neighbors, although their concerns with city problems might well be such that a person: from: another area "could` not (in 'their opinion) adequately represent them and though an annexed area may be large enough so that its voters could well elect a city ,council- man, or hold the balance of power in a mayoral election. It is reasonable to require a candidate to have the background familiarity with city affairs which a minimum residency require- ment would insure. But a resident of an area <'immediately ad- jacent may also have this familiarity' and the process `.of annexation can itself be a crash course in city finances, taxa- tion, and problems for affected residents. Nevertheless , the principal consideration in _our ;minds' is that the newly annexed citizens must by virtue of the annexation be placed on a fully equal footing with all other citizens with respect to the franchise and right to hold city office. f We accordin 1 conclude that t r rovisions not onl i s _ou mu e cons rue to armit t e can idacy o an oche alified erson who , or one year e ore e e ection, is a re ident of an area w c is now a par or e ci Tigard Sincerely , - LEEZ� OHNSON Aty%rney General LJ:JAR:nd ✓ t �4S August 8, 1974 MEMO TO: Mayor, City Council, City Administrator, and City Recorder of the City of:Tigard FROM: Anderson,,Dittman & Anderson SUBJECT: CITY CHARTER DURATIONAL RESIDENCY REQUIREMENTS` OF ASPIRANTS TO CITY ELECTIVE POSITIONS In our capacity as counsel for the City of Tigard, we have been requested to consider and provide a written opinion with -re- spect to the` durational residency eligibility requirements of the City Charter in relation to aspirants to elective positions who will not have resided in the City for the required twelve (12)' months immediately',prior to the forthcoming election but whose total period of continuous residency in an 'area`annexed to the City in January, '1974, will have extended more than twelve (12) months prior to the November election. In this connection, we have researched with respect to the basicquestions hereinafter stated and have considered various authorities along with the opinion of the Oregon Attorney General of August 2, 1974, responding to a request of State Representative Ragsdale (whose constituency does not; include the people of the City of Tigard). It is noted that after quoting several sections of the Tigard City Charter, the Attorney General's opinion properly suggests that: "Interoretation of the quoted language to de- termine whether or not it would disqualify the prospective candidate is primarily'a matter for determination by City Election Officials on advice of the'City Attorney or retained counsel." As a basic background it is to be noted that the incorpora- tion of Tigard as a City was approved by the legal voters at an election held on September 11, 1961, under authority of ORS Chap- _ ter 221, and that the City functioned as a statutory municipality without a Charter through December 31, 1962. The first five councilmen were chosen by the voters at an election held on November 13, 1961, pursuant to ORS 221.110, which, in pertinent part, is quoted: "Any resident of a city (organized under Chap- ter 221, ORS ) shall be eligible to hold an office of the City." (Parenthesis supplied. ) a: (Thus, it may be noted that one of the basic factual premises of the Attorney General's opinion as set forth in the first paragraph on Page-2 is founded on an erroneous assumption.) Pursuant to the Home Rule provisions of Article IV, Section 1, and Article XI, Section 2, of the Oregon Constitution, the original Charter of the City of Tigard was adopted by vote of the people of the City at an election held November 6, 1962, becoming effective January 1, 1963. Certain amendments thereto, including Provision for election of a Mayor each two years .rather than selec- tion of oneofits members by; the Council to serve as Mayor, were adopted by the voters on May 26, 1972. part: Chapter III, Section 7, of the Charter provides, in pertinent "The 'elective officers of the City shall be a mayor and 'four councilmen, who together shall`constitute'the City Council." Chapter VI, Section 31, authorizes: "A qualified elector who shall have resided in the City during the 12 monthsimmediatelypre- ceding the relection may be nominated for an% elective city position as provided in Section 12. 1' Chapter III, Section 12, again emphasizes durational resi- dency requirements: "No person shall be eligible for an elective officeof the City'unless' at the time of his election he is a qualified elector within the meaning of the State Constitution and has re- sided in the City during ,the_twelve months im- mediately preceding the election." It is further provided by Section 12, Chapter III: "The Council shall be the final' judge o'f the qualifications and election of its own members, subject, however, to review by a Court of com- petent;jurisdiction." The area of initial inquiry concerns the constitutionality of the durational residency requirements of the Charter as above quoted, both with respect to qualification of the nominees for election and elective office holders. As noted by the Attorney General's opinion, and in accordance with the authorities herein- after stated, these provisions of the City's Home Rule Charter do not contravene the constitutional rights of any prospective nominee or candidate and do not deny equal protection rights under the First Amendment to the United States Constitution. This is clearly supported by at least two very recent re- ported cases involving similar durational residency requirements. A strikingly similar question was involved in the case of Lawrence v. TheCity of Issaquah et al, No. 43116, determined by the Supreme Court of the State of Washington on July 25, 1974. In the City of Issaqc�uua�hh case the council under Washington State statutes Rh 35A 12.040) was empowered to determine whether or not a candidate for City Councilman met the statutory require- ments of one year's residency in the City as required by Section RCW 35A-12.030 for statutory cities. The council denied Lawrence a seat on the council on the grounds that he failed to meet the -2- a one-year residency requirement, the having become a resident of the City ,of, Issaquah on August 1, >1973 and a candidate for=elec- tion as Councilman in the election of 1lovem.ber 6, 1?73. Lawrence attacked the constitutionality of the one-year statutory durational requirement alleging that he was denied equal protection of the laws as compared to Issaquah residents of one year or more. The: 11-ashington Supreme Court upheld the decision of the S+iperior 'Courtof -King-County holding that '-the lone-year residential requirement was justified by-a compelling state interest: ?`It afforded a candidate an opportunity 'o becom.c exposed to the needs and problorhs of the elec- torate, and for the electorate to observe the candidate and'gain 'fi .,rhand L-novledge`of his or her habits and ch.�iracter." The one-year duration was found to be reasonable in consideration' of the ,office involved. The 6:ashington<court cited Chouien v Starlc. 353 " Sunp. 12.11 (DiiH 1973) ahich, on appeal, was affir.red thout opinion by , the United States Suaru„e Court, 41)1 u.s. 802, 91; S. 'Ct. 125 (1°73) the State o :eri' . z.. Uhire required not less than aeven year s`i cihce`tis a, uglification for the office of governor, of the state. On the basis of the :forogoing, we believe that the durational residency requirements of the Charter of the City of,';i;;ard ill withstand attack on constitutional grounds. The application of the durational residency requirements of the City Charter to an aspirant to City elective office who resided coni n uou ly for „ol•e" .an ,relve (12) months prior to the fortis coining election in an arca annexed to the City ap roxii atcly ton (10) months prior to the fortihco:^.ung election nreoents a second Question. of somewhat _renter perplexity with respect to `";hicil few, if any, reliable court rulings are available. Our research discloses no Oregon or Federal cases on this aspect of tloe matter and we do not concur :in the Attorney General's conclusion . ..that the urincipal consid::rat:ion...is that the newly anne.,:ed citi.-ons must by virtue of the annexation be placed on a fully equal foot- ing with all other citizens with respcct to the franchise unci righty to hold cito-fice." ^10so conclude, in our opinion, provic.es no rational basis for distinction between an aspirant for city office .rho has resided in unincorporated area `next door" to the City for an equal period of time to that of the annexes: aspirant but who by personal decision changes his residence to a place Within the City less than t,.elve (12) months prior 'Go the date of the election. In the absence of some rational basis for distinction unjustifiably affording the annexed aspirant to city office an exemption from the residency provisions is to require that any otherwise qualifl.ed aspirant to elective office who also does not meet the durational residency ;.- requirement of the Charter be places on the same footinr_ as the annexed aspirant, thereby rendering these charter provisions meanin3less. There being no evident reason why solely because the -3- aspirant's ;tome: became annexed ,;o the City, the basic purpose of the one year residency requirement would be thereby fulfilled-- this purpose as stated in Issaquah being: "...that the; residential requirement of 1 year for the office of city councilman.. .is not an unreasonable limitation to fulfill the compelling' state interest of affording the candidate for that office the opportunity to be exposed to the needs'' and problems of the People of the (city), and at the same time to afford the people of (city), the opaorttuiity-,to observe the canriidate forcitycouncil and gain firsthand knowledge about his or her habits and:character.'' Review of the 1.1cConnell case, 4C7 S.?•'. 2d 318, and the Lindsey case, 217 Cal. 533, 20 P2d 327, both cited and reviewed in ,the Attorney General's opinion, does not, in our outlook sup- port any different- view than that above expressed, as neither of these cases are factually similar to the situation'with which we are concerned. Each of them involved only changes of residence of an aspirant to office through realigning for voting Purposes, areas within pre-existing" peripheral governmental unit boundaries. The applicable provisions of the [Dara Charter are clearly stated,`without ambiguity uity :and should be cons.truea vrith she i ar,so e _ of achieving too public interest objectives as quoted from the I i.ai: and Thement cases. In our opinion, there being no doubtful nea:iing in the charter provisions, there is none to be resolved in the candi- date's favor as proposed by the attorney General's' opinion. The one; year prior residency requirements of the city charter in our opinion, must be applied literally to all aspirants to elec- tive city office without exception, including those .becoming resi- dents of the city through annexation of territory occurring less than one year'prior' to the applicable election. Section 12 of Chapter III of the Charter, "the Council shall be the final judge of the qualifications and election of its own members (including the Mayor), subject, however to review by a ® Court of competent jurisdiction," is/only an authorization to, but a clear duty of, the Council. not Respect ully submitted. P ,.i. A. Anderson