COUNCILORS PRESENT:    Mayor Sheldon Meyer, David Bellemore, Peter Howison, Richard Koehler, Susie Navetta, Bob Petersdorf, John Scott

COUNCILORS ABSENT:  None.

STAFF PRESENT:  George Burke, Gary Darnielle, Joanne Hickey, Christy Lewis, Terri Tinker.

   1.     EXECUTIVE SESSION

           The Council held an Executive Session meeting immediately preceding the Special Meeting, in conformance with Oregon Revised Statutes 192.660(2)(7), regarding potential litigation.  No decisions were made.

   2.     CALL TO ORDER

           Mayor Sheldon Meyer called the Special Meeting of the Dunes City Council to order at 6:30 p.m.

           City Recorder Joanne Hickey called the roll and stated that a quorum was present.

           Councilors joined in the Pledge of Allegiance.

   3.     CITIZEN INPUT        

           Mayor Meyer stated that Council consideration of issues related to three of four City staff having submitted resignations would follow public testimony on the topic.

           Norman Martin, 83750 Rio Drive , Florence , read a letter from Rich Rodeman an attorney engaged to advise a group of Dunes City citizens regarding alleged irregular Council and Planning Commission decision making processes.  He stated that Mr. Rodeman was experienced in dealing with such matters and that it was his opinion that recent attempts to void the appointment of one Planning Commissioner and expand the size of the Commission were unlawful.  He said the letter demanded that the Planning Commissioner whose appointment was voided be reinstated and warned that if it was not, legal action would be filed.

           Mr. Martin listed errors regarding the appointment process:  (1) The Council action was taken against the advice of the Acting City Attorney.  (2) The Council did not allow the Planning Commission to fulfill its responsibility for implementing the Dunes City Comprehensive Plan.  (3) Membership on the Planning Commission did not meet statewide requirements for diversity.  (4) Staggered term limits were not assigned to Commissioner positions.  (5) The person whose appointment was vacated was not given due process in violation of the City Code.  (6) The action was an abuse of the power of elected officials.

           Bob Read, 5020 Ford Way , said he had spoken with at least one member of the Council about the pending resignation of staff members.  He said it was his understanding that the major concern of staff was being over-burdened by the massive amount of work resulting from newly adopted Ordinances.  He said the staff also suffered from interference by citizens and elected and appointed official.  He praised the work of the City staff.

           David Davis, 83000 Jensen Lane , said he believed City staff was commendably performing their responsibilities.  He said the resignations would force the City to hire and train new employees, adding $10,000 to $20,000 of unbudgeted expenses.  He said he was concerned that the circumstances causing the resignations be dealt with openly.

           Mayor Meyer reported that that during the Executive Session held earlier in the evening, Council had asked the City Attorney to prepare recommendations for the March Council meeting on how to deal with and monitor the work of City staff.  He said the recommendations were intended to ensure that staff work was not interrupted and was able to do their work.  He said he believed the current staff was the best the City had ever had.

           Mayor Meyer said an additional issue considered in the Executive Session was the potential of litigation related to voiding the appointment of a member to the Planning Commission.  He said the Council had asked the City Attorney to prepare a draft Ordinance that would expand the membership of the Planning Commission to six, re-appoint the member who had been previously appointed as a member, and assign staggered terms to all positions.

           Panning Commission President George Burke said decision-making by the Planning Commission would be inhibited by having an even number of members.  He said reconstituting the Commission to seven members would be a better alternative.  He said he was opposed to any of the proposed changes because they were being made to settle potential litigation.  He said the Council should “stand up and be accountable” for what it had done.

           Councilor Bob Petersdorf suggested that a way to avoid tie votes was to designate that the Commission President only vote when the members present were evenly split in making a decision.

           Councilor Richard Koehler asked if all positions on the Planning Commission were filled.  Councilor Peter Howison replied that a member of the Commission had reported that it was operating “illegally.”

           An unidentified voice from the audience asked how the Council would deal with the need for staggered member terms on the Planning Commission.  Mayor Meyer replied that the terms of all members would be reset to make the terms of two members expire each year.

           Councilor David Bellemore said he believed the Council had acted legally in its voiding of an appointment to the Planning Commission.  He said it was done in the best long-term interests of the City.

           Another unidentified voice from the audience stated that according to his recollection of the Planning Commission, it had never been unable to reach a decision about any issue.

           Still another unidentified voice from the audience said he did not believe adding a sixth member position to the Planning Commission would not resolve any of the issues inhibiting the ability of the Commission to make recommendations.

           Councilors and members of the public engaged in a lengthy discussion about the importance of those holding opposing views being able to reach compromise, instead of one side threatening the other with litigation.  They appeared to agree it was “time to move on.”

           Councilor Koehler moved, seconded by Councilor Howison, to instruct the City Attorney to prepare an Ordinance proposal to be acted on at the next meeting of the Council that would expand the number of Commissioners to six, establish that the Chairperson would only vote in cases of tie, stagger the terms of members, and declare an emergency.  The motion was adopted, 6:0. 

           Mayor Meyer declared a ten-minute recess in the meeting.

   4.     PUBLIC HEARING

           Mayor Meyer reconvened the Special Meeting of the Council and opened a Public Hearing at 7:30 p.m.

           City Attorney Gary Darnielle stated that the purpose of the Hearing was to continue consideration of an Oregon Land Use Board of Appeals (LUBA) remand of a Council decision to deny applications for Woahink Ridge Estates Planned Unit Development (PUD 01-05), Zone Change (ZON 01-05), and Subdivision (SUB 04-05).  He referred to a document entitled “City Council – Final Order and Findings of Fact on Remand from LUBA – Woahink Ridge Estates – Preliminary PUD Subdivision (PUD 01-05) and Zone Change (ZON 01-05).”

           Each Councilor declared that he/she had no real or potential conflict of interest and had held no ex parte discussions regarding the applications.

           Bill Kloos, 576 Olive Street , Eugene , stated that he was a land use attorney retained to assist the applicants to implement the Woahink Ridge Estates plan.  He said he would raise issues that might be distasteful, but were necessary for them to be used in response to the LUBA remand.

           Mr. Kloos referred to his letter dated February 1, 2007 distributed to the Council through the City Attorney that identified two categories of issues:  (1) New testimony being received from those questioning the development after the record of the hearing had been closed on January 18.  (2) An allegation that one member of the City Council had contributed to the efforts of those opposing the application, indicating prejudgment bias.

           Mr. Darnielle explained the Oregon standard of bias.

           Mr. Darnielle said the Council should consider whether to open the record of testimony for the hearing to accept the communications identified and allow time for rebuttal/response by the applicant.

           Councilor Howison said he would find it useful to be able to consider issues of slippage and stormwater drainage previously discussed, with new insights provided by the communications.

           Councilor Petersdorf said he believed the time previously committed to evaluating the applications had been ample and that the new information supplied by the communications would be superfluous. 

           Councilor Bellemore agreed and said he believed too many new issues were being raised, making the process of a final decision drag on inordinately.

           Councilor Koehler asked if allegations of conflict of interest had been made mute by the declarations given by Councilors.  Mr. Darnielle replied that the statements by Councilors could be challenged.

           Mayor Meyer stated that the issue to be decided was whether to open the record to submission of material received and allow the applicant to respond.

           Councilor Petersdorf moved, seconded by Councilor Bellemore, not to accept testimony regarding the Woahink Ridge Estates applications received after its record had been closed, and to make a decision based on what had previously been received.

           Councilors discussed the ramifications of the motion.

           The motion was adopted, 4:3, with Councilors Howison, Koehler, and Navetta voting no, and Mayor Meyer breaking the tie by voting yes.

           Councilor Howison moved, seconded by Councilor John Scott, to reopen the public record regarding the Woahink Ridge Estate applications and accept as evidence to be considered communications received and applicant responses to them.  The motion was adopted unanimously, 6:0.

           Dan Olmstead, no address provided, stated that he was an engineer certified to work on issues “from the ground and down.”  He distributes copies of a letter that includes provisions for the use of bio-retention cells and nutrient sequestration in the development of the Woahink Ridge Estate project.  He warned that rejecting the PUD proposal would leave the application for a Subdivision development of the property.

           Councilors discussed the details and issues related to the stormwater control proposals for the development, advantages/disadvantages of Subdivision versus PUD, Applicability of elements of the Dunes City Comprehensive Plan, the possibility of limiting lawn sized on developed lots, and the location of a buffer beside the road through the wetlands.

           Mayor Meyer invited testimony from those opposed to the application.

           Jerry Wasserburg, P.O. Box 2959 , Florence , said he was concerned about issues related to the planned access road to the property – its carrying capacity, location, width, traffic, and faulty construction.  He said Lane County needed to be involved with the planning and construction of the road.  He also said slumping also needed to be considered.

           Mr. Kloos stated that the applicants would be able to meet all of the concerns about the road, and had addressed slop issues in its previous submissions.

           Mayor Meyer determined there were no other persons wishing to testify and closed the Public Hearing at 8:55 p.m.   He invited to deliberate regarding the applications.

           Councilor Scott said he favored approving the 19-lot PUD application because it addressed all areas of concern raised and conflicts with the Dunes City Comprehensive Plan had been resolved in testimony received.

           Councilor Petersdorf said he agreed and suggested that the proposed development would better protect the property than leaving it undeveloped.

           Councilor Bellemore said he was concerned about preservation of the wetland identified on the property.  He added that he would prefer a 15-lot subdivision development to reduce the population density of the area.

           Councilor Howison said he believed density was a primary issue that needed to be concerned.  He said the PUD application reduced the size of lots and concomitant lower stormwater run off.  He emphasized the importance of preserving the Lake .

           Councilor Koehler referred to Oregon Statewide Planning Goals and read its provisions for carrying capacity level of use for property – the limit that can be accommodated and continued without irreversible impairment of natural resource productivity.

           Councilor Scott said he did not believe it would be possible to quantify the limits of carrying capacity.

           Councilor Howison said he believed the Comprehensive Plan gave the City authority to regulate individual lot sizes of more than an acre.  He added that he supported approving a 15 unit PUD because it would be possible to meet setback and development requirements.

           Councilor Petersdorf suggested that a compromise could be to approve a PUD of 17 units.

           Mayor Meyer stated that he sensed the Council was about to arrive at a consensus to approve the PUD application with the number of units to be limited to less than 19.  He asked Mr. Kloos if the applicant could accept provision for a lower number of units.

           Mr. Kloos said he did not believe the applicant would agree to any limit in the number of units in the PUD.  He suggested that the City Attorney be asked to prepare finding that would justify a reduced number on a legal basis.  He said he did not believe it could not be done.  He said the Council had a responsibility to make a decision based on clear and objective standards, which it had not identified.

           Councilor Koehler asked if the Council had authority to act on the number of units to be constructed on the property.  Mr. Darnielle replied that would be possible only with a Subdivision development. 

           Councilor Susie Navetta moved, seconded by Councilor Bellemore, to deny the Woahink Ridge Estates application for a 15-unit Subdivision.  The motion was unanimously adopted , 6:0.

           Mr. Darnielle asked what the basis for denial of the application was.  Mayer Meyer replied that he understood the Council to base its decision on protection of the wetlands, better use of common areas, and slope issues.

           Councilor Scott moved, seconded by Councilor Bellemore, to approve the application for a 19 unit PUD by Woahink Ridge Estates, with original and new Conditions identified in the Final Order and Findings of Fact; and adding limitations of use of fertilizer and phosphate-containing detergents, protection of the surrounding areas with wetlands, and creation of bio-retention stormwater ponds.

           Councilor Howison stated that he had voted to deny the original PUD application and continued to feel that there were significant problems associated with the development.  He said the Council had learned a great deal from the process about the fragile nature of  lakes and believed the applicant should be required to meet additional standards for controlling the impact on natural environment.

           Councilor Scott said he believed implementing controls provided with a PUD would result in significant improvements being made to the property.  He said the proposal would reduce the stormwater runoff from what it was currently.

           Councilor Koehler asked what recourse the applicant had if the PUD application was denied.  Mr. Darnielle replied that an appeal to LUBA would be likely.

           Councilor Howison moved to amend the motion to require consultation with a recognized stormwater expert in designing of the related systems of the development.  The motion was not considered because of the lack of a second.

           Councilor Navetta said her biggest concern about the development was its significant increase of impervious surface.

           The motion was approved, 4:3, with Councilors Howison, Navetta, and Koehler, voting no, and Mayor Meyer breaking the tie by voting yes.

           Mr. Darnielle stated that he would prepare Findings supporting the decision to be adopted at the next meeting of the City Council.

           The meeting adjourned at 9:34 p.m.                                            

              (Recorded by Dan Lindstrom)

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           Sheldon Meyer Mayor                                                                           Date

           Dunes City Council