Agendas and Minutes

City Council (View All)

Special Meeeting

Wednesday, January 28, 2004

January 28, 2004 - 10:00 a.m.
Civic Center Council Chambers, 1175 E. Main Street

Mayor DeBoer called the special meeting to order at 10:12 a.m.

Councilor Laws, Hartzell, Jackson, Amarotico and Morrison were present. Councilor Hearn has been excused by the Council due to direct conflict of interest.

1. Findings for Planning Action 2003-127

City Attorney Paul Nolte explained that after the public meeting was closed and the Council made its decision, he drafted the Findings in an attempt to reflect their decision. He noted that there were two sets of Findings for their comments and discussion, the Draft Findings from him and a revised version from Councilor Hartzell.

Nolte informed the Council of the following revisions to his original Draft Findings:
• Page 2: a sentence was added that reflected that additional documents came into the Council after the first portion of the hearing and before the second.
•  Page 3: "gross square footage" was added to the Relevant Substantive Approval Criteria paragraph.
•  Page 4, Finding #1: Nolte suggests changing it to read "Of the above-ground area, 23,671 square feet is designated for above-ground parking, leaving a total gross floor area above ground of 32,296 feet designated for commercial and residential areas." Nolte stated that Councilor Hartzell has requested that this line be stricken from the record. Nolte explained that if they leave it in, they should revise it to say, "this is all as the applicant has designated".)
• Page 5, Finding #6: Nolte explained he removed the sentence "For eight years there was no issue as to what the limitation meant" because he is not sure this is in the record. Instead, he changed the sentence to read "This provision was not interpreted by the Council until the OSF project in the year 2000."
• Page 6, Finding #8: The sentence "The applicants were well aware of the public process as at least one of them appeared before us to comment on the proposed ordinance amendments and one of the principle architects in the firm representing the applicants serves on the Planning Commission." was added.

Councilor Hartzell stated she was concerned that the Findings drafted by Staff contain content that has to do with the 2003 ordinance, which is not pertinent and could open the door for discussion. She preferred sticking with the relevant facts used for making the decision.

The following is a list of Councilor Hartzell's proposed modifications to the findings:
• Sentence "The applicant produced no evidence to show that the size of the building is within the limitation as we interpret it" was added to Finding #1,
•  Stated the "above-ground parking" and "below-ground parking" in Finding #1 is not relevant,
• That the language in Finding #2 portrays that the Council deemed what the Planning Commission did as wrong. Would like to add language that states that the Planning Commission was acting in good faith and on their understanding of the process, and
• That the statute, which allows the Council to reinterpret, was not included.

Nolte stated that the Council could add this is they wanted to. He further explained that the statute being referred to is the formal process by which the code can be interpreted when the Planning Director finds that there is a doubt to the meaning of a term. That process was never formally started and presented to the Planning Commission on that basis. Nolte stated that they are relying on case authority, and there is language included that addresses those cases. He also stated that he does not feel we need to add this to the findings.

Regarding Finding #5, Hartzell stated it had been debated whether measurements should be taken from the interior of the floor space or exterior of the building, and suggests removing any language that could be argued.

Nolte explained that he added this statement because in another place in the Findings they state that it was not necessary to do that, and clearly the OSF Findings say that it did not exceed the requirements.

Regarding Finding #5, Hartzell suggested removing "...whether underground, in a basement, designated for parking or otherwise" because this was not discussed in the 1992 ordinance.

Nolte explained that if the applicants appeal and want to argue that it doesn't exceed 45,000, this clearly states that we are including all floors, wherever they are located.

Hartzell continued with comments on the following Findings:
• Finding #6, noting that the language could be confusing with the interpretation and reinterpretation,
• Finding #6, objects to the language "...the interpretation has been embroiled in controversy..."
• Finding #7, clarified that when the Planning Commission conducted a hearing, the Council directed Staff who then went to the Planning Commission, and the direction was to re-write the ordinance to reflect what the Council said,
• Finding #8, suggests adding "without our knowledge", and noted it was important to say that it met the public meeting law, and
• Finding #10 stated there was a clause in the testimony that stated there was no official evidence that the application was ever deemed complete.

Nolte explained what didn't need to be included and that there is evidence that the application was complete, however there has been no written notification to that effect.

Nolte explained, in regards to the addition of the footnote after Finding 10, that it would be an easy way to clarify what the process was and what that process ended up with.

Hartzell expressed concern with why the ordinance amendments were important to the Findings and that the applicant could come back with a strong argument, and does not want to confuse the issue.

Nolte explained that it helped to explain that part of the process, but it does not have to be included. Nolte stated that is already in the record, and the applicant can already argue it if they want to. He clarified he is not trying to hand them an argument, he is simply stating what the Council did.

Nolte explained that Finding 13 had been specifically stated that way to get within a particular court appeal case, where the court held that even in the course of proceeding the Council could change a previous interpretation. Nolte urged the Council to keep this in the findings.

Nolte stated that he feels the Findings adequately address any arguments that the applicant will raise.

Morrison & Hartzell suggest adding to the last sentence on Finding #2 "…the Council's interpretation and find that it is wrong."

Mayor DeBoer expressed his concern of Council re-writing the document. He noted they have Staff who are hired to do this, and is concerned they will inadvertently omit pertinent information.

Nolte explained if there is anything that is discussed at the Council level that he feels detracts from the legal basis to support the Council's decision, he will do his best to catch it and advise them. He cannot guarantee that he will catch everything, but it is the Council's prerogative to establish Findings that they are comfortable with and support their decision.

Councilor Morrison stated the goal was to have a document that accurately reflects what went on, and felt that it should be one that does this as clearly and comprehensively as possible.

Nolte explained that what the Council needs to do is clearly arrive at what they want in the Findings, approve them as they've discussed, then Staff will reduce them to writing and provide them to the Mayor for his signature and distribute them.

Councilor Jackson stated she is reluctant to refer to the fact that they are reinterpreting for a second time. Suggests changing Finding #6 to "the interpretation prompted controversy...".

Jackson also questioned Finding #7 which states "In addition, the Planning Commission held two subsequent Study Sessions and a Public Hearing in early 2003 where the Commission recommended that the Council not interpret the ordinance as referring to footprint." Jackson questioned if they were sure the Planning Commission wasn't referring to gross square footage.

Councilor Amarotico questioned what difference the two Findings would make with LUBA, and asked how seriously they look at the findings compared to what happened during the public process.

Nolte explained the Findings are the basis of the decision, and it is what LUBA will look at. If there is something that is in the Findings and not supported in the record, LUBA can state that our decision is not supported.

Councilor Jackson read a section from the Planning Commission minutes of February 11th, which states the gross square footage to mean gross floor area not footprint. Jackson then suggested changing Finding #7 to correctly reflect the Commissions' recommendation.

Councilor Laws stated that he found Nolte's Findings adequate and that they accurately reflected the Council's decision. He also supports the proposed corrections and additions from Nolte.

Councilor Laws stated he had not had the opportunity to read Hartzell's version, and does not feel comfortable comparing them on the spot.

Jackson/Laws m/s approve findings as written by Nolte and amended by Nolte, including the wording adjustment in Findings #7 regarding the Planning Commissions' motion, and Hartzell's addition to Findings #1. DISCUSSION:
Hartzell clarified that the modification to Finding #1 is actually just Nolte's sentence taken from Finding #14. Stated she was uneasy over going into so much detail regarding above ground and below ground parking.

Nolte stated it was a handy reference for those reviewing the findings, but it can be removed. Nolte added it is already located in the record and can be argued by the applicant.

Hartzell requested removing everything after the first sentence in Findings #1, expressed her confusion with the first sentence in Findings #2, and asked if the motion included her suggestions to Finding #7.

Hartzell motioned to amend the original motion with following changes:
1) Finding #1 stops after first sentence, 2) Finding #7, first sentence should read "These public hearings began in August 2001 when the City Council directed Staff to reflect the footprint interpretation. Planning Commission conducted a hearing regarding the interpretation", 3) Finding #7, third sentence should read "In addition, the Planning Commission held two subsequent Study Sessions and a Public Hearing in February 2003…" 4) Finding #7, fourth sentence should read "Following the Commission Public Hearing this Council held a May 2003 Study Session and indicated that the limitation should not be interpreted as referring to footprint." 5) Finding #8, first sentence should read "This extensive public process occurred completely outside the quasi-judicial process and without Council's knowledge of the application being considered in this appeal.", and 6) Footnote should be removed entirely.
No second motion failed.

Voice Vote on original motion: Councilor Laws, Amarotico, Jackson, YES, Hartzell and Morrison, NO. Motion passed 3-2.

Meeting was adjourned at 11:10 p.m.

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