DUNES CITY COUNCIL MINUTES
REGULAR MEETING
January 12, 2006
7:00 PM
CALL TO ORDER, ROLL CALL AND PLEDGE OF ALLIGIANCE
Acting Mayor Meyer called the meeting to order at 7:05 p.m.
PRESENT: Mayor S. Meyer; Councilors, J. Scott, P. Howison, Judy Martin, D. Robinson, and R. Petersdorf.
ALSO PRESENT: J. Hickey, City Recorder; Milo Mecham, City Attorney; Teri Tinker, Planning Secretary; Christy Lewis, Recording Secretary; Lee Riechel, Les Zemlicka, Susie Navetta and George Burke, Planning Commission; LCAN; Denise Ruttan, Siuslaw News; and approximately 65 citizens from the community.
Mayor Meyer led the Council and audience in the Pledge of Allegiance.
2. CONSENT AGENDA
All items listed here are considered to be routine by the Dunes City Council and will be enacted by one motion. There will be no separate discussion of these items. If discussion is desired, that item will be removed from the Consent Agenda and will be considered separately.
A. Approval of Minutes: December 6, 2005 and December 8, 2005
B. Bills of the Session: December 9, 2005 to January 12, 2005 totaling $15,664.44
C. Commission/Committee Reappointments: Application for Appointment received by: Planning Commission: Les Zemlicka; Road Commission: David Persons and Bill Connell (two positions available); Budget Committee: Robert Read; and Conservation Committee: Lee Riechel. Note: There were no other applications received.
The Council requested that Item A, Approval of Minutes for December 8, 2005, be removed from the Consent Agenda. Councilor Howison asked about one person serving on two committees. Acting City Attorney Mecham said that he was not aware of any problems with one person serving on two committees unless the two committees’ discussion/decisions overlap, when the person should recuse themselves from one of the committee votes.
ACTION: J. Martin made a motion to approve the Consent Agenda, with the Minutes of December 8, 2005 removed. J. Scott seconded the motion. There were 5 ayes, 0 nays, 1 vacant. Motion carried.
DECEMBER 8, 2006 MINUTES: Councilor Petersdorf asked for a tape review of page 12 of 17, first action item. Petersdorf said he recalled that the section: "1. A drainage plan utilizing tree buffers and natural vegetations between the development and the wetland, a sufficient expansion of the wetland by an engineer to prevent wetland degradation and overflow." had been removed from the motion. Councilor Martin agreed, since she did not see any way the City could require the expansion of a wetland without Division of State Lands approval (remove and fill law). Recording Secretary Lewis said she would review the tape and bring the minutes back for approval to the February City Council Meeting.
3. RECEIPTS OF THE SESSION
The receipts for the period of December 9, 2005 to January 12, 2006 totaled $30,160.31.
4. ANNOUNCEMENTS AND INFORMATIONAL ITEMS
A. Introduction: Milo Meacham filling in for Gary Darnielle.
B. Committee Vacancies: Site Review Committee, and Budget Committee.
C. Art Exhibition: Bernie Herr for the months of January and February.
D. Volunteer Fire Fighters and CERT Trainees needed for Dunes City.
E. Public hearing for Little Woahink PUD has been postponed to at least the February Planning Commission meeting.
5. GUEST SPEAKERS/CITIZEN INPUT ON UNSCHEDULED ITEMS – None.
6. VACANT CITY COUNCIL POSITION
Mecham said that proper public notice was not given for the scheduled nomination meeting for the Council applicants. Mecham recommended that the Council meet prior to the February City Council Meeting, allowing proper notice to the public and list the councilor appointment on that February Agenda with a nomination, second and vote. Mecham said that a secret vote would not follow the public meetings law and it is the Mayor’s is responsibility to decide the process of selection. Mayor Meyer noted that he would not be present at the February City Council Meeting and Council President Martin would be presiding. It was decided that the public could submit questions to City Hall up to two weeks following that night’s meeting, which the Council could incorporate into their interview process. It was suggested that the applicant make an opening statement. Mecham clarified a few points including that different questions could be asked of different applicants, Martin would be able to vote as Council President, the Council would present public questions (public would not participate), staff would contact the newspaper providing the names of the applicant and provide a copy of applications for public viewing.
7. UNFINISHED/OLD BUSINESS
A. Reedal front fence removal; extension requested until June 1, 2006
Martin explained that originally the date for the removal of the front fence was projected to the time that the land use ordinance revision would be in place, since there is a change in that revision allowing for a 6’ chain link fence in the front yard. Martin said that although the revision has been delayed, she believes that the changes will go through within the next few months. Martin said it would be foolish and inconsiderate to have the Reedals remove the fence, only to be allowed to replace the fence with the adoption of the new revision.
Alice Helmuth asked to speak. Mecham said this item was not a public hearing and it would be the decision of the Mayor to allow Helmuth to address the Council. Meyer allowed Helmuth to make a statement.
Alice Helmuth, 83570 Woodland Lane, Florence OR 97439
Helmuth objected to the extension due to the fact that the illegal fence has been in place for two years. Helmuth said the chain link portion had been removed in the riparian area; however, there remains six metal posts embedded in concrete along her property line, which in her opinion, should also be removed.
Richard Reedal, 8522 Ridgetop Drive, Eugene, OR (representing parents).
Reedal explained the posts have been used to post No Trespassing signs, due to his parents being assaulted; however, the chain link portion of the fence has been rolled up and placed to the side. Reedal said that in regards to the front fence, it should be allowed to remain due to extraneous circumstances.
ACTION: J. Martin made a motion to allow an extension for the front fence to remain until June 30, 2006. D. Robinson seconded the motion.
Discussion:
Scott said that there are two issues; the front fence and the posts that remain in the riparian area. Howison agreed saying he thought allowing the front fence to remain should be contingent on the posts in the riparian area being removed. Martin made the point that removing the posts would disturb the soil in the riparian area causing erosion. Petersdorf stated that he is uncomfortable with the issue and during a recent trip on the lake, has seen about 60 violations. Petersdorf said that if the City enforces the fence removal for the Reedals, then the City should go after other violators.
There were 3 ayes, 2 nays (Howison and Scott dissenting), 1 vacant. Motion carried.
8. NEW BUSINESS
(New matters, in absences of a compelling reason, may be set over to a subsequent meeting.)
A. Purchase of Unity scanning software needed for digitally archiving original documents on file at City Hall. Staff asked for approval to hire temporary help for scanning City archive documents and posting revised forms, applications, Comprehensive Plan, minutes, etc. to the website.
ACTION: J. Scott made a motion to purchase the Unity scanning software with two hours of training. B. Petersdorf seconded the motion. There were 5 ayes, 0 nays, 1 vacant. Motion carried.
The Council decided to have staff review the scanning process before hiring the temporary help. Hickey said she had a couple of suggestions for the temporary help, and she could e-mail the Council with the results of the hiring.
B. Temporary Office Closure for January 18 and 25 for the final implementation of the Woahink Water Right permitting procedure.
ACTION: B. Petersdorf made a motion for the City Hall office closure for January 18 and 25 to complete the implementation of the Woahink Water Rights permitting procedure. P. Howison seconded the motion. There were 5 ayes, 0 nays, 1 vacant. Motion carried.
C. Set date of a joint work session for the Planning Commission and City Council. Topic: Land Use Applications
The work session will be at 6:00 P.M. prior to the Planning Commission Meeting on January 19th. Scott described the meeting as a way of iron-out some of the questions, allowing a more unified direction and discussion between the two bodies. Dinner will be provided.
D. Resolution 1-12-06: A resolution to authorize the increase in the Central Lincoln PUD Franchise Fee
Howison said that a couple of years ago, there was a chance to increase the franchise fee from 3 ½% to 5%. At that time, it was decided that the City did not need the additional funds. Howison identified the need to replace the old septic system. Hickey estimated an additional $12,500 per year to the City with the increase. Petersdorf said he is opposed and sees it as a "tax behind the doors." Martin and Scott said there is no property tax in Dunes City, so they were in favor of the increase. Howison said previously he had agreed with Petersdorf, but the City needs the money for the septic replacement, the legal expenses and the issues that have been brought before the City in the past months.
ACTION: P. Howison made a motion to pass Resolution 1-12-06, a resolution to authorize the increase in the Central Lincoln PUD Franchise Fee. J. Scott seconded the motion. There were 4 ayes, 1 nay (Petersdorf), 1 vacant. Motion carried.
Mayor Meyer moved the agenda to the Public Hearings portion of the Agenda due to the time.
Agenda resumed after the Public Hearings were concluded.
E. Suggestions for the donation and/or removal of the old photocopier.
The Council suggested donating the photocopier to a non-profit organization.
F. Staff Assistance Procedure (adopt as operating procedure)
Mecham explained the memo from Gary Darnielle (See Exhibit A).
ACTION: J. Martin made a motion to adopt the operating procedure memo dated 1-5-2006. D. Robinson seconded the motion.
Council discussion was in the direction of denying the memo. In a side discussion, Petersdorf and Meyer requested that once the agenda is set and the documents are in the packet, there shall be no additional information or items included at the meeting.
Staff was directed to work on the situation and feel empowered to deny requests. There was no vote on the motion.
G. Resolution 1-12-06 (A): A resolution revising Resolution 01-15-04: A resolution approving the formation of a Water Quality Control Committee for the purpose of maintaining the water quality of all waters in Dunes City. Revision would change the Composition and Term of Office and add a section for Presiding Members.
There were numerous objections to the draft resolution by the members of the Water Quality Committee. Mecham said that the Committee as it stood was not an official committee of the City. Hickey said the resolution was intended to be a starting point to legitimize the committee and the provisions were a composite of the other Commissions and Committees in the City.
ACTION: D. Robinson made a motion to send the resolution to the Water Quality Control Committee for recommendation to the City Council. P. Howison seconded the motion. There were 5 ayes, 0 nays, 1 vacant. Motion carried.
9. PUBLIC HEARINGS – began at 8 pm.
A. Adoption of a Final Order regarding violations of Dunes City
Code Section 91.12(A)(2), 91.12(B) and 91.14 on Tax Lot 1000,
Assessor’s Map 19-12-34-21 (aka 4673 Pacific Avenue, Dunes City).
Mayor Meyer read the following into the record:
The Public Hearing concerning the adoption of Final Order CF06-001 is opened at 8:15 PM on Thursday, January 12, 2006.
The purpose of this hearing is for the City Council to consider the adoption of a Final Order concerning the nuisance accumulation of materials on Tax Lot 1000, Assessor’s Map 19-12-34-21 in violation of Sections 91.12(A)(2); 91.12(B)(1)(3), (4) and (6) and 91.14(A) and (B) of the Dunes City Code.
The respondents, Michael John Watts and Rickey Alan Watts, as owners of the property; and Vicki Watts, as resident of the property, are alleged to be the persons responsible for abating the nuisance conditions.
The Mayor shall preside over the Public Hearing and made determinations regarding objections and other procedural issues. The Mayor shall not vote except in cases of a tie.
The burden is on the City to show by a preponderance of the evidence that:
(1) Between June 24, 2005 and July 26, 2005 conditions existing on the property subject to these proceedings violated Sections 91.12(A)(2); 91.12(B)(1), (3), (4) and (6) and 91.14(A) and (B) of the Dunes City Code.
(2) That the conditions existing on the property at the present time have not been abated and still constitute a violation of the sections of the Dunes City Code listed here.
(3) The respondents are the persons responsible for abating the nuisance conditions.
Do any of the City Councilors have a confict of interest or a bias that would prevent them from rendering an impartial decision in this matter?
Councilor Martin declared that she would be a witness in the proceeding and stepped down from the Council.
Have any of the City Councilors had an ex parte contact regarding this matter?
Councilors Petersdorf and Scott said they have talked to Vicki Watts regarding a dog complaint. Meyer asked if the contact would keep Scott and Petersdorf from making an impartial decision. Scott and Petersdorf answered no.
Meyer continued: Because Councilor Martin will be presenting evidence at this hearing, she will not participate in the voting on this matter.
The hearing will be conducted in the following manner:
1. The City Attorney will present evidence in support of the Final Order, including calling witnesses, and will explain the calculation of the penalty matrix. The testimony of witnesses called by the City Attorney is subject to cross-examination by the respondents.
All persons offering testimony will first be asked to take the following oath of truthfulness administered by the Mayor:
Do you solemnly swear, under penalty of perjury, that the testimony you give is the truth, and nothing but the truth?
The respondents may object to the introduction of any evidence by the City Attorney. This objection may be upheld or overruled by the Mayor.
2. The respondents may present evidence in opposition to the Final Order, including calling witnesses. The testimony of the respondents and witnesses called by the respondents are subject to cross-examination by the City Attorney.
3. At the end of testimony, the City Attorney may offer a closing argument followed by a closing argument by the respondents.
4. The Council begins its deliberations to determine whether one or more of the violations of the Dunes City Code that are alleged in the Final Order are supported by a preponderance of the evidence.
If the Council finds that one or more of the alleged violations of the Dunes City Code have been proven by a preponderance of the evidence, it shall next determine whether one or more of the respondents are persons responsible for abating the nuisance conditions as outlined by Section 91.01 of the Dunes City Code.
If the Council finds that one or more of the alleged violations of the Dunes City Code have been proven by a preponderance of the evidence, it shall also determine whether the penalty matrix was correctly calculated.
5. The Council shall adopt the Final Order, modify the Final Order or not adopt the Final Order and dismiss the complaint.
Ricky Watts, the only respondent present at the meeting, declined to sit by the City Attorney who requested that he be near to receive copies of evidence presented.
Watts said he had no intention of arguing the complaint. Mecham talked about the process, the notice to abate, the penalty calculation, and then assess a final penalty. Mecham said if the penalty is not paid within 30-days, a lien will be attached to the property, and then the City can foreclose the lien, or collect when the property sells. Mecham went through the right to appeal.
Joanne Hickey was sworn in by the Mayor. Mecham questioned Hickey regarding the letters of abatement, certified mailings, lack of response from the Watts, and the history of the nuisance complaint. During the process, Mecham presented documents as evidence. Rickey Watts asked Hickey if she had received anything signed by him. Hickey responded no. Watts said he did not live at the address at the time and the certified mail was signed by his great-niece and never received by him.
Judy Martin was sworn in by the Mayor. Mecham questioned Martin in regards to the nuisance complaint. Martin, as chairperson of the Site Review Committee, provided information that described the actions of the Committee regarding the Watts property, showed various photos of the eyesore nuisance, explained the lack of action by the Watts, and the progression of clean-up since the December City Council Meeting when Rickey Watts was in attendance. During the process, Mecham presented documents as evidence. Rickey Watts asked Martin if they had ever spoken before. Martin answered, no, but Martin said she had talked to Joe Watts on numerous occasions regarding the complaint.
Mecham went through the calculation of the penalty. Mecham adjusted the penalty for Rickey Watts, since notification to Rickey Watts was not sent out to him until one month after the initial abatement notification to Michael and Vicky Watts. Mecham said the City could fine the three Watts individually (Vicky Watts $85,000, Michael Watts $85,000, and Rickey Watts $66,500); however, Mecham suggested having one penalty where Vicky and Michael are jointly assessed a fine of $85,000 and Rickey Watts would be jointly responsible for $66,500 (a portion of the $85,000). R. Watts commented that the calculations (formula) were "way over his head."
Councilor Robinson said she observed during the previous month, one person cleaning up the property. Mecham said there is still a nuisance at the property, but the Council could end the penalty at a certain time. Mecham cautioned that it appeared that junk was being moved from one property to another property, which could make it necessary to continue action.
Howison commented that the calculation was too confusing. Mecham said the purpose of the calculation was not to confuse people, but attempt to have objective factors that would treat individuals fairly. Mecham explained the penalty options. Howison said it is not practical for Watts’ to come up with the fine, but the lien could have value to use as a way for the property to remain nuisance free. Mecham said the Council does not need to impose a lien after 30 days. Mecham said that if the City imposes the fine, the City could, at a later date, negotiate a lesser fine, but if the Council decides to not assess a fine, the City would have to start the process over again.
Rickey Watts, 04683 Pacific Avenue, P O Box 3, Westlake OR 97493. Watts said he only became aware of the City’s action on December 7th. Watts said he has been intentionally kept in the dark by his sister. Watts said he removed his sister’s boyfriend and some family members from the property and has begun the clean-up. Watts said he was unaware of the situation, since he did not live at the property. Watts said he was angry over the comment that he is moving things to a back property. Watts said he has taken it upon himself to clean-up that property, which does not even belong to his family. Watts said that he cannot live at the property after a month, but he will continue to oversee the property. Watts said he has reduced income, which would slow down the clean-up, but in the next month he would continue the clean-up (he has made it a personal goal). Watts said some items he need to keep such as PVC pipe, aluminum, and wood. Watts said he is willing to sell the property if the City imposes the fine.
Mecham waived a closing argument.
Council Deliberations:
Scott suggested the penalty be imposed, and halt the penalty after the property has been inspected for a completed clean-up. Scott said the lien should be filed and that lien be used as a hammer so that if the property reverts back to the nuisance, the property would then be foreclosed upon. Robinson suggested that if the property did remain cleaned-up over a period of time, at the time the Watts sell the property, they could come before the Council and have the lien reduced. Mecham clarified that the Council could remove the lien at anytime they decided. Howison commented that it would be nice if the nuisance would be dealt with, since the actions have cost the City several thousands of dollars.
ACTION: J. Scott made a motion to adopt Final Order, File: CF 06-001 as presented. P. Howison seconded the motion.
ACTION: B. Petersdorf asked that the original motion be amended to drop the $500 per day fine tonight and amend the first paragraph of the final ruling to drop the last sentence that continued the $500 per day fine. P. Howison seconded the motion. There were 4 ayes, 0 nays, 1 abstain (Martin), 1 vacant. Motion carried.
Vote for the original motion. There were 4 ayes, 0 nays, 1 abstain (Martin), 1 vacant. Motion carried.
The Public Hearing closed at 9:56 P.M.
There was a recess at 9:57 P.M. Meeting resumed at 10:10 P.M.
B. Sunset Cove – Planned Unit Development (PUD 02-05) and
Zone Change (ZON 02-05), Tax Map 19-12-23-31, Lots # 3400 and 3500,
and Tax Map 19-12-23-33, Lot 1500 – 16.706 acres.
Mecham said the public hearing is for the reconsideration of the Sunset Cove PUD that is continued from the December City Council Meeting. Mecham presented the Staff Report (See Exhibit B). Mecham presented two Findings of Fact and Decision: one that denies the PUD and one that approves the PUD with conditions. Mecham outlined how the Council should come to a decision and said that the decision the City Council made would send a message to staff what the Council will accept for a PUD application.
Scott said that if the Council accepts the PUD with conditions, then the burden of proof is upon the City to assure compliance. Scott asked that if the application were denied and if substantial changes were made to the application, could the applicant come back to the City in less than a year. Mecham said yes, but if the application was the same, they would have to wait one year.
Robinson read from the code that a PUD required at a minimum the following: existing contours of the proposed contours after development at intervals…, approximate location, arrangement and dimensions of the proposed streets, sidewalks…, approximate locations of buildings and structures…, preliminary landscaping plan…, proposed water, drainage and sanitary system…, etc. Robinson said there have not been any geological surveys done and it cost just as much to do the survey up front as opposed to later. Robinson said Hilary Dearborn should have made requirements prior to the City Council Planning Commission levels. Mecham defended Dearborn saying that past practices of the Council has been to approve applications with conditions to assure financial viability. Due to the current atmosphere, Staff is trying to tighten up the proposals. Howison said that the developer is familiar with the Code and is taking advantage of that familiarity. Robinson said the topography map is not included with the placement of the building site and septic system, making it impossible to make a decision regarding those placements.
There was a discussion about Final Plats being approved prior to checking if all the conditions had been met. Teri Tinker said that in the future, the Planning Commission will review the final plat before it is signed off. The Council and audience acknowledged the work that the Planner and Planning Secretary have done to get completed applications. Tinker said the Council has until March 2nd to make a decision.
Howison said he is concerned about the lack of a drainage plan and it is the responsibility of the applicant to provide that drainage plan to the Planning Commission. Howison recommended denial of the application.
Martin went over ORS 197.522 that gives three choices:
Approve the application.
Approve the application if can be conditioned to meet the Code.
If it can meet reasonable conditions of the Code, it can be denied.
Martin said that if the City denied the application, the applicant could go to LUBA and cite ORS 197.522. Mecham said he believes that if the Council adopts the proposed Findings for denial, the findings support a determination that could not be conditioned in a way that would meet approval and is defendable. It is up to the Council as to what is reasonable. If the Council approves the application with conditions, Mecham believes that decision is defensible as well.
ACTION: P. Howison made a motion to deny the requests by Ruby Sauter for (1) a zone change to add a PUD-suffix to Tax Lots 3400 and 3500, Assessor’s Map 19-12-23-31 and Tax Lot 1500, Assessor’s Map 19-12-23-33, and (2) the preliminary plat for the Sunset Cove PUD/Subdivision. The City Council has considered the evidence presented by those for the proposal, as well as against the proposal, and it has found by the weight of the evidence that the proposal should be denied. This denial is based upon the Draft Findings of Fact and Conditions of Approval, as modified, for File Numbers 02-05 and PUD 02-05, dated September 8, 2005, that is adopted by reference in support of this decision. D. Robinson seconded the motion.
Discussion: Petersdorf said the City is going through growing pains and if a subdivision had not been approved in the last forty years, there would not be many people living in Dunes City. Petersdorf said the State of Oregon and Lane County should help the City with the current water quality concerns. Petersdorf believes the Sunset Cove is a good subdivision as long as the City is willing to check the final plat for the required conditions. Scott said he saw a problem with the run-off on Sauter Drive West (due to the steepness) that ends up within 50-feet of some wetland areas and the issue of the jog in the street, but agrees with Petersdorf, that the items could be addressed in the conditions of approval along with the other conditions that are listed in the staff report. Howison said that it sounds like the PUD can come back and address the problems up-front rather than the City spending time and effort to assure that the corrections are made. Petersdorf said he believe that if the application is denied, the applicant cannot reapply for 2-years. Robinson said that if there is significant change in the application, the Planning Commission has the discretion to look at the application again. Mecham agreed.
Vote for the motion: 2 ayes, 3 nays (Scott, Martin and Petersdorf), 1 vacant. Motion failed.
ACTION: J. Martin made a motion to postpone the final decision for the Sunset Cove PUD to the February City Council meeting. J. Scott seconded the motion. There were 4 ayes, 1 nay (Robinson dissenting), 1 vacant. Motion carried.
Mecham advised the Council that the Public Hearing is closed and ex parte contact could disqualify a councilor from voting.
ACTION: B. Petersdorf made a motion to continue the meeting beyond 11:00 P.M. J. Martin seconded the motion. There were 4 ayes, 1 nay (Robinson), 1 vacant. Motion carried.
Agenda returned to New Business, Item E.
10. Reports
A. Report by City Attorney - M. Mecham
Mecham announced that there is a notice to appeal Woahink Ridge PUD to LUBA.
B. Road Commission – Road Report - R. Petersdorf
Petersdorf said there was no December Road Commission meeting.
C. Parks & Recreation/Conservation Committee - D. Robinson
1) Rural Tourism Marketing Program: The City will be
receiving $10,279.
D. Site Review Committee - J. Martin
Martin said the Site Review Committee will be looking at the property directly behind the Watts.
E. Police Comm./Fire Dept/Water – WQCC Report - J. Scott
Scott said there will be a meeting with Dr. Doug Larson on January 28th. Scott said Larson will address water quality issues and the meeting will be announced next week.
F. Community Center - P. Howison
Howison said the current septic system is being evaluated by Lane County.
G. Grants/Franchises/Licenses - Vacant
H. Mayor’s Report - S. Meyer
I. Planning Report - T. Tinker
1) Applications received: Four Minor Partitions and Two
Comprehensive Plan Amendments.
11. Unscheduled Items Not Listed on Agenda – None.
12. Executive Session - None
13. Adjournment
Meyer adjourned the meeting at 11:58 P.M.
APPROVED BY:
____________________________ _______________________________
Sheldon Meyer, Mayor Christina Lewis, Recording Secretary
____________________________ _______________________________
Council Position Vacant Judy Martin, Councilor
____________________________ _______________________________
Robert Petersdorf, Councilor John Scott, Councilor
____________________________ _______________________________
Peter Howison, Councilor Della Robinson, Councilor