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HomeMy WebLinkAboutApproved Minutes - 2020-11-03 s CITY COUNCIL REGULAR MEETING — MINUTES V NOVEMBER 3, 2020 aREGO� 1. CALL TO ORDER Mayor Studebaker called the regular City Council meeting to order at 3:02 p.m. on November 3, 2020. The meeting was held virtually. 2. ROLL CALL Present: Mayor Studebaker and Councilors Kohlhoff, O'Neill, Nguyen, LaMotte, Wendland, and Manz Staff Present: Martha Bennett, City Manager; David Powell, City Attorney; Anne-Marie Simpson, City Recorder; Sue Scobert, Communications Manager, Police Department; Dale Jorgenson, Police Chief; Ellen Davis, Associate Planner; Evan Boone, Deputy City Attorney; Jessica Numanoglu, Planning Manager; Scot Siegel, Planning and Building Services Director; Erica Rooney, City Engineer; William Farley, Traffic Engineer; Paul Espe, Associate Planner 3. CITIZEN COMMENT • Justin Luber Mr. Luber, a 10-year resident of the quarter-mile section of Lakeview Blvd. between Bryant Rd. and South Shore Blvd., requested that Council review opportunities to improve its safety, walkability, and aesthetics. He described ongoing increases in use by pedestrians for fitness, recreational, and other activities, often two or more abreast instead of in single file. With pathway shoulders of varying width and no sidewalks, people often walk into the lane of traffic; COVID-19 social distancing has exacerbated these dangers. Installation of a sidewalk would improve safety for citizens walking and running in this section of Lakeview Blvd., he suggested.A second concern was decreased adherence to the posted 25 mph speed limit over the years; motor vehicles now are routinely driving 40 to 45 mph in the area. Speed-indicator signage and other measures could offer solutions. In addition to the speeding, homeowners in this section of Lakeview also face challenges in exiting driveways because of vegetation obscuring their sightlines. Council was asked to consider a maintenance review of overhanging and street-level vegetation along the pathway. Improvements, he concluded, would offer exceptional opportunities for residents because of proximity to the Lake Grove Swim Park, restaurants, and other amenities. City Council Regular Meeting Minutes Page 1 of 19 November 3, 2020 Mayor Studebaker expressed certainty that this issue was included in the Capital Improvement Plan (CIP) and would be explored further. Ms. Bennett advised that she would refer the traffic issues to Engineering staff. Vegetation management was usually the responsibility of property owners, she noted, and therefore would likely be referred to Code Enforcement. 4. PROCLAMATION 4.1 First, First Responders Ms. Scobert conveyed the importance of trained dispatchers nationwide in ensuring effective response to police,fire, and medical emergencies. She emphasized dispatchers' role in mitigating circumstances in ways that keep officers, medics, and fire personnel safer. Highlighting the example of a LOCOM dispatcher, she described the positive outcome of a call from an armed suicidal person that was handled without intervention of a crisis negotiator. LOCOM and its four user agencies recommended approval of the City's proclamation recognizing 911 telecommunicators as First Responders and celebrating their contributions to public safety. Chief Jorgensen expressed wholehearted support, hailing LOCOM as a "crown jewel". Mayor Studebaker read the final clause of the Proclamation (First Responders Proclamation). 5. PUBLIC HEARINGS 5.1 Ordinance 2853, An Ordinance of the Lake Oswego City Council Amending LOC Chapter 50 (Community Development Code) for the Purpose of Clarifying and Updating Various Provisions (2020); and, Adopting Findings (LU 20-0015). Mr. Powell read the Ordinance title. Noting that the matter was a legislative decision, he outlined parameters and reviewed the public hearing process as shown in the agenda. In response to his request for any City Council declarations of conflict of interest, none were heard. Staff Report Ms. Davis presented an overview of the annual Community Development Code (CDC) amendments. Proposed amendments were outlined in two categories: 17 maintenance items and four policy items, as detailed in the Council Report (Ordinance 2853 CDC Amendments). The maintenance items did not represent any major changes in policy, she advised; however, she offered clarification on Item 6 (Attachment 2, p 7/26), as it had drawn several questions from the public. It was the policy items(Attachment 2, p 22-26/26)that potentially could have more impacts: Policy Item 1 proposed a requirement that driveways be located within a property's frontage as bounded by an extension of the side property lines. Policy Item 2 would bring the R-6 zone lot- coverage methodology in line with all of the other residential zones by changing the height methodology and exceptions for lot coverage to conform with all other residential zones; while likely yielding only about a 2% reduction in allowed lot coverage, it was a small step toward allowing more space for existing trees and new mitigation trees. The First Addition Neighborhood/Forest Hills Neighborhood Association supported this amendment. Council's attention was drawn to written testimony in opposition that had been submitted by the Home Builders Association (HBA) of Metropolitan Portland (Exhibit G-1 to Council Report). Policy Item 3 proposed a definition of co-housing which would be added to the definition of multi-family dwelling; a recent project proposal involving a large shared kitchen had brought to staff's attention the opportunity for flexibility as housing needs changed over time. She emphasized that the code change would not alter any density or design standards for multi-family housing nor would it City Council Regular Meeting Minutes Page 2 of 19 November 3, 2020 change the required land use process. It would not affect any single-family zones in the city; cohousing would only be allowed as a multi-family use. This item was not related to House Bill (HB) 2001, she noted, but could be part of future conversation on that topic. Policy Item 4 would combine the definitions of community institution and institutional use, henceforth to be termed institutional use. This seeks to eliminate confusion related to the overlap while not prohibiting current uses or losing any potential uses. The Planning Commission recommended approval of all of the amendments in both the maintenance and policy categories. Ms. Davis responded to follow-up questions from Councilor Manz. She confirmed R-6 to be the prevalent zoning designation in the heart of First Addition. Regarding the flag lot access lane item (Attachment 2, p 10/26), she explained that removal of the words wherever practicable from the text would not change anything about access for flag lots. It was intended to better comply with the State's requirement for clear and objective standards for housing. Generally, staff would encourage consolidation into a shared single access lane, but where that was not possible, the language provided for the discretionary review track. Councilor Wendland posed questions about the R-6 zone in First Addition. Ms. Davis indicated that the R-6 zone designation had been created separately as part of the neighborhood planning process, subsequent to most of the other zones. The proposed change would simply be making the code more similar to that for other zones. It would be easier for staff, the development community, and residents to understand and meet code requirements, with potential for only a minimal percentage change in lot coverage. A house built under the proposed code revision would not differ significantly from redevelopment seen in the zone in the past 10 years; the maximum increase in lot coverage would be 6%, she reiterated, explaining how most First Addition lots would likely be closer to 2%. Other than lot coverage, all other standards remained unchanged, including maximum floor area and height. She outlined how this afforded owners the opportunity to maximize their development potential with both short and tall homes. Testimony • Roseann Johnson, Assistant Director of Government Affairs, Home Builders Association of Metropolitan Portland Ms. Johnson, noting that her area of responsibility included Lake Oswego and other cities in Clackamas County, expanded upon issues discussed in her November 2, 2020, letter. In addition to representing nearly 850 companies and thousands of people employed in the remodeling and residential construction industry, the HBA advocates for housing affordability and choice for residents in the region. They believe the City's R-6 zone supports construction of new and relatively-attainable housing as seen in the FAN/Forest Hills neighborhood. Discussing the background of the R-6 zone, she indicated that the current lot coverage methodology serves this area of smaller minimum lot sizes effectively; the height methodology and exemptions for certain structures should remain as currently allowed. With passage of HB2001 at the state level in 2019, the HBA looked forward to learning how they could provide relatively more housing choices to cities, including in the R-6 zone. Builders and developers would still build single-family houses there, and existing single-family homes were unlikely to be torn down if they were worth more than the land they stood on. When that was not the case, the City's tax base would benefit. The addition of duplexes, townhomes or other "middle housing" types would be critical to accommodating new families and first-time homebuyers. She emphasized that the City should avoid undermining housing affordability, especially in this zone that offers the best chance for redevelopment. By restricting permitted building footprint there as proposed in Item 2, square City Council Regular Meeting Minutes Page 3 of 19 November 3, 2020 footage would be reduced; for example, the impact could preclude a 10' x 10' bedroom, office or other desired space. Further, disallowing the exemption of certain structures as exceptions to lot coverage would reduce opportunities for homes that were more aesthetically pleasing. The outcome would be smaller, less-attainable homes; it might actually threaten the possibility of bringing new townhomes and duplexes to market there. While applauding the desire of the neighborhood association and the City to save trees, the HBA requested more time to work with the association on the potential unintended consequences of the proposal. In response to a question from Mayor Studebaker, Ms. Johnson clarified how a reduced footprint would result in lost square footage that could not be offset by design changes. Councilor Kohlhoff suggested that the primary effect would be on a main-floor bedroom, seemingly a preference of developers. Given the potential of First Addition for greater access or housing affordability that Ms. Johnson had described, this was not what was being built there. Ms. Johnson clarified that a bedroom was only one example of a functional living space that would be eliminated to compensate for a reduced footprint and ultimately square footage. She differentiated housing that would meet Clackamas County's definition of affordability from what the HBA promotes as relatively affordable in Lake Oswego with its very high land values and resources. With local implementation of HB2001, simple townhomes and duplexes built to R-6 standards would enable new residents to live in homes that were aesthetically compatible with single-family homes in First Addition. This would achieve the aim of relative housing affordability. Councilor Manz inquired about the amount of square footage that could be lost with an average lot coverage reduction of 2%. Councilor O'Neill estimated 30 square feet; for reference, a children's bathroom with tub, toilet, and single sink might be 50 square feet. Ms. Johnson agreed. • Carole Ockert, FAN/Forest Hills Neighborhood Association Introducing herself as land use liaison for FAN/Forest Hills, Ms. Ockert advised that her testimony concerned two of the code amendment policy items, as highlighted on a slide presentation (Ockert Testimony). For Item 2 she affirmed the Association's support for the update, which would refine the R-6 code to better support best practices. Reviewing background of their involvement with the proposed amendment, she noted that it had originated a year earlier at the suggestion of a prominent designer of homes in the R-6 zone. He had pointed out that building height in the zone was measured differently than for any other zone in the city. The proposed change to make it consistent with other residential zones would simplify the code. It offered the potential benefit of reducing the number of tree-removal appeals; by slightly reducing impermeable surfaces, there might be improvement with drainage issues. As the suggested change had come from the designer of many quality homes in the R-6 zone, she was confident that any resulting design modifications would be an asset. Item 3 would permit cohousing, not currently allowed under City code. She quoted from the HB2003 draft: "Allow for single-use occupancy, adult dorms and co- housing in all residential zones". This simply offered cohousing as one option among many routes to compliance; HB2001 itself does not even mention cohousing, she asserted. Seven Lake Oswego neighborhood associations had become concerned to find the cohousing concept appearing in annual code update language; their request was, and continues to be, to defer cohousing consideration to the HB2001 process. She outlined a sequence of efforts they had made since March, 2020, contending that a proposed cohousing development in downtown was not permissible under current code. These efforts had involved the Planning Commission, which disagreed with the neighborhood representatives and directed staff to move forward with this code update. Council was asked to hear seven neighborhoods' strong message that cohousing does not belong in annual code updates. She reported on her comparison with West Linn's code, which City Council Regular Meeting Minutes Page 4 of 19 November 3, 2020 does not permit cohousing. Also, Ethan Stuckmayer, senior planner for housing programs at the State's Department of Land Conservation and Development(DLCD), had made it clear to her that how "dwelling unit" was defined was not part of HB2001; the definition was up to the individual city. The proposed definition changes in Item 3 would blindly open a door to City code, she warned, not at the direction of DLCD but of the Planning Commission. If cohousing is to be allowed, it made much more sense to examine this as part of the bigger code re-write. The proposed cohousing code allows for all kitchens and bathrooms in such a development to be communal; as written, it is sub-standard code. In its lack of specifics about number of dwelling units to be served by one toilet, for example, citizens might ask if they want this type of housing in Lake Oswego. She did not want the City to adopt code that promoted workforce housing, affordable housing or cohousing that was substandard. She asked that the proposed cohousing code changes, Item 3, be removed from the annual code amendments. Councilor Wendland asked for background on origin of the cohousing subject. Ms. Davis explained that it originated with a proposal for a cohousing development in a portion of FAN/Forest Hills that is zoned for multi-family. As noted by Ms. Ockert, it showed a large shared kitchen facility, with individual units having minimal kitchenettes. Staff had reviewed the proposal and found that it was substantially similar to multi-family use and would meet the density requirements, go through the same process, meeting the dimensional and design standards applicable to multi- family. Sharing of a communal kitchen did not constitute a different land use; it was more a matter of internal workings within the development. Staff had then stated that this was in substantial compliance with multi-family housing and was allowed within the zone. Staff had listened to the feedback from the neighborhood association, i.e., that they did not find it substantially similar to existing multi-family. Therefore, staff included the cohousing item in the annual code amendments, to be considered as a potential change; if it is not substantially similar to multi-family already, then perhaps cohousing would be considered as a separate item in order to decide if it is appropriate for the community. She confirmed that cohousing would be applicable only in zones allowing multi-family dwellings. Councilor Wendland asked, with implementation of HB2001, a 4-plex was proposed for a lot anywhere in the city, if the cohousing standards would then apply. Ms. Davis emphasized that specific effects of the HB2001 implementation for the city were not known at this time. However, if a multi-family proposal were to be allowed on a property, then it could be multi-family cohousing or some other form of multi-family housing. Councilor Kohlhoff expressed concern about bathrooms: What, if anything, in the code would preclude 12 people sharing one bathroom or would otherwise define the ratio? Mr. Siegel indicated that this was regulated under the Building Code. In further discussion, Ms. Davis noted that the number and type of sanitary facilities was not being specified for cohousing. Mr. Siegel indicated that the Building Code did specify, essentially, a ratio of fixtures per occupants in larger residential uses. Councilor Manz expressed appreciation for the forward thinking on cohousing. However, she concurred with Ms. Ockert that the topic would be better examined as part of the conversation on HB2001. Any related code changes could be put together more effectively at that point, she suggested. Asking about the status of the project proposed to include a communal kitchen, she was advised by Ms. Davis that it was on hold. Councilor Nguyen asked about adequacy of parking for the project, given that it seemed to be a form of workforce housing. Ms. Davis acknowledged that likely residents would not be at home all day. Parking standards would not be changed for cohousing; they would be the same as for a standard multi-family housing development, which she outlined. City Council Regular Meeting Minutes Page 5 of 19 November 3, 2020 Councilor LaMotte described his understanding of the cohousing concept, of which the most successful examples were for single parents or seniors enjoying social facilities and sharing certain facilities, such as a clubhouse. He discussed various resources that were available to enhance knowledge of cohousing opportunities. As it was a complex concept, he believed this portion of the code changes should be removed, the rest should be approved, and the Planning Commission and Planning Department should be asked to provide Council with more complete information on cohousing. After confirming that there was no further testimony to be heard, Mayor Studebaker closed the public hearing. Mayor Studebaker moved to approve Ordinance 2853 with the exception of the cohousing item and to direct staff to consider that item further. Councilor Manz seconded the motion. Councilor Wendland noted that the amendments related to the R-6 zone seemed primarily a means of making the zone consistent with other residential zones. He asked how the 2-6% reduction in lot coverage could actually reduce the number of tree appeals. Ms. Davis explained that the reduction could leave slightly more area around an existing tree. Also, with the challenge of the relatively small lots and relatively large building footprints, applicants struggled to find places for mitigation trees in the available pervious area. This change was regarded as a "low- hanging fruit" rather than as a solution to the tree canopy issue. Mayor Studebaker confirmed the motion at Ms. Simpson's request. Mr. Powell noted that this tentative decision of the City Council would become final upon adoption of the ordinance with findings and conclusions on November 17, 2020. A roll call vote was held, and the motion passed, with Mayor Studebaker and Councilors Kohlhoff, O'Neill, Nguyen, LaMotte, Wendland, and Manz voting `aye'. (7-0) 5.2 Ordinance 2854, An Ordinance of the Lake Oswego City Council Clarifying, Revising, and Updating LOC 42.03.130 (Intersection Sight Distance); LOC 45.09.065 (Abatement of Dangerous Building Code); LOC 55.02.082 (Tree Cutting Permit Issuance); LOC 55.02.92 (Tree Cutting Permit Expiration); Repealing Article 12.55 (Compensation Claims Under ORS Ch. 197) and Adding LOC 34.02.065 (Helicopter Landing or Takeoff). Mr. Powell read the Ordinance title and reviewed the public hearing process as shown in the agenda. He asked if any City Councilors wished to make a declaration related to conflict of interest; none were heard. Staff Report Mr. Boone noted that six items comprised this annual code update. These included the repeal of Article 12.55, which was no longer applicable, as explained in the Council Report (Ordinance 2854 Non-Community Development Code Amendments). He touched on two other matters: addition of LOC 34.02.065 (Helicopter Landing or Takeoff) and revision of LOC 45.09.065 (Abatement of Dangerous Building Code), both detailed in the Council Report (Attachment 1). Mr. Farley would be available to answer any questions about the changes in distance requirements after Ms. Numanoglu presented the proposed Tree Code amendments. City Council Regular Meeting Minutes Page 6 of 19 November 3, 2020 Ms. Numanoglu advised that the proposed Tree Code amendments were policy neutral; they were designed to codify current practice regarding timing of the issuance of the notice of tentative decision for Type II tree-cutting applications and for forest management. They would also address timing of the issuance of Type II tree permits associated with building permits, as well as the expiration of a Type II permit associated with building permits. The key issue behind the proposed changes is that current code states that staff shall issue a decision within two business days of the end of the comment period for Type II and forest management permits. Tree permits that are associated with building permits are reviewed concurrently with the latter; this prevents approving removal of a tree when staff is not certain the building will comply with code standards like setbacks, lot coverage, and height. Furthermore, the City does not want to issue a building permit without assuring that the applicant has obtained the appropriate tree permits and received approval. Under current code, the two-day requirement for issuing the tentative decision on tree removal, followed by the two-week comment period, takes less time than the process for reviewing the building permit. Current staff practice, therefore, has been to wait until the end of the comment period, to hold any comments received, and then to reserve issuing the notice of tentative decision until confirming that the building project complies with the code and that the tree removal is necessary. At that point the notice of tentative decision is issued, and the process moves forward as it currently does, with notice of that decision provided to those who submitted comments, the applicant, and the pertinent neighborhood association. This allows staff sufficient time to ensure review of the building permit before issuing a decision on the Type II application and does so concurrently with the building permit. It also precludes expiration of the tree-cutting permit while waiting for completion of the building-permit process. Simultaneous issuance significantly reduces the possibility that someone would secure a tree permit, remove the trees, and then not follow through with the building permit that was the cause of the removal. A final consideration concerned the 60-day expiration of Type II tree-cutting permits: Often the construction phasing required a longer period of time. The proposed update would codify staff's current practice, which was to not expire a tree permit as long as the applicant had a valid building permit. Councilor Wendland raised the subject of homeowners wanting to build an addition but hoping not to incur significant investment in architectural and other plans before learning that a tree removal was not allowed. A process that allowed the applicant to minimize expenses in this situation was desirable. Acknowledging that this was a challenge, Ms. Numanoglu advised that this was sometimes possible with smaller additions or pools. However, staff is not able to issue a tree-cutting permit without the building permit if the project is the reason for removal, and therefore permits need to be issued concurrently. However, applicants are allowed to provide a site plan showing where an addition would be placed, without having incurred expenses of engineering and other necessary planning. Staff then can review the site plan and discuss its compliance with the standards for setbacks, lot coverage, and the like; however, the tree permit still would not be issued without the building permit. Councilor Wendland asked if a tentative approval could be given prior to issuing the building permit. Ms. Numanoglu noted that this could be feasible for a pool, where setbacks were the primary issue; house additions involved too many standards, e.g., side yard appearance and screening, lot coverage, floor area, to make that approach possible. She responded to Councilor Wendland's concern for applicants who had made a large financial outlay for building plans and then were denied a tree permit. Staff's customer service efforts could include a review of the site plan, the site, and the tree, through which they might convey any issues to the applicant. Fundamentally, she noted, if a tree is standing in the middle of the only location for an addition, there is a good chance that removal would be approved. If it is a significant tree, it must be shown that that are no reasonable alternatives. For a smaller tree not deemed City Council Regular Meeting Minutes Page 7 of 19 November 3, 2020 significant, it would probably not pose an issue. Generally, staff would talk with such applicants and try to give them a better sense of where the decision might come out. However, absolute certainty could not be given. Councilor Wendland identified these "two pieces of the puzzle" as an issue for him as there appeared to be a conflict in the process. He suggested approval of the tree-cutting permit conditioned upon acceptable plans. His point was to get the sequencing done in an efficient manner that was the least costly. Ms. Numanoglu confirmed Councilor Kohlhoff's understanding that these proposed changes would bring into code the reality of current City practices regarding tree appeals: At the end of the comment period, the application is put on hold. Once the building permit review is finished, the usual notice of tentative decision is issued, followed by a one-week appeal period. If no appeal is filed, then both permits can be issued. She also confirmed that this code revision would not change the degree of burden on a person who appealed the decision, i.e., the effect would not be to change the substance of a proposed appeal. Councilor LaMotte noted that many residents claim the City's tree permit and building permit processes are out of sync. He expressed confusion about the purpose and effects of the proposed code changes to reflect the concurrent review process now in place. Ms. Numanoglu confirmed that the tree and building permit applications are submitted as a package and are reviewed concurrently. When associated with a development, such as a partition or new commercial building, there is a pre-application process through which staff can talk in advance with applicants about trees. People proposing an addition or building a new home are most often phoning or coming to the Planning Department counter, so trees can be discussed at that point. There is no pre-approval process for tree removal as the permit applications are reviewed concurrently. Mr. Siegel noted that another consideration is the need to look at a number of variables in context, e.g., stormwater facilities and sewer lateral water. Although the concurrent review does not offer certainty on any of those, it does allow City staff across the departments to coordinate, work with applicants, and seek solutions. This offered a more efficient process, as opposed to sequential review, which he believed had been a past practice. Councilor Wendland clarified that his concern was chiefly for citizens wanting to do minor projects such as decks cost effectively and in compliance with City code. It was difficult for such an applicant to invest a couple of thousand dollars in a plan only to find that tree removal was not allowed. The City's approach for developers and other construction professionals was on the mark, and he was convinced of staff's helpfulness to all. However, he wanted the policy to serve the "weekend project person", perhaps even to include a tentative approval in the process. Mayor Studebaker called for any testimony on the matter. None was offered. Councilor Wendland requested clarification on the intent of the addition regarding helicopter landing or takeoff. Mr. Boone referred to the text (Attachment 1), confirming that these activities were allowed only in an emergency or with approval of the City Manager. If a person wanted to establish a helicopter landing zone, they would go through the FAA process and could get City Manager approval, considering the factors that were laid out, he added. Councilor Kohlhoff inquired about the revision to LOC 42.03.130 (Intersection Sight Distance), in light of a concern brought to her attention about an intersection on McVey Avenue. She asked about the possibility of changing the referenced standards (Attachment 1) in a specific City Council Regular Meeting Minutes Page 8 of 19 November 3, 2020 circumstance where the City believed it would not provide the necessary level of safety. Mr. Farley explained that the revision was to stopping sight distance, the minimum distance needed for safety. The proposed code change would allow the City to look at the 85th-percentile speeds or the design of the roadway, i.e., the lesser standard with regard to stopping sight distance; this was to ensure drivers could stop in time to avoid a collision. Staff still prefers intersection sight distance, and that part of the code remains unchanged. In the case of McVey, the emphasis would probably be on intersection sight distance, where drivers can enter the road without impacting traffic, he added. Mayor Studebaker moved to enact Ordinance 2854 clarifying, revising, and updating the Lake Oswego Code. Councilor Manz seconded the motion. A roll call vote was held, and the motion passed, with Mayor Studebaker and Councilors Kohlhoff, O'Neill, Nguyen, LaMotte, Wendland, and Manz voting `aye'. (7-0) 5.3 Ordinance 2852, An Ordinance Annexing to the City of Lake Oswego One Parcel Consisting of 0.28 Acres at 5950 SW Harrington Avenue and Public Rights of Way at Harrington Avenue and Mellon Avenue; Declaring City of Lake Oswego Zoning Pursuant to LOC 50.01.004.5(a-c); and Removing the Territory from Certain Districts (AN 20-0005). Mr. Powell read the Ordinance title. Noting that the matter was a land use request, he outlined parameters for the decision and reviewed the public hearing process as shown in the agenda. He asked if any City Councilor wished to make a declaration in relation to several items: (1) any ex parte contact, including a description of its substance, (2) bias, and (3) any conflicts of interest. Councilor Kohlhoff stated that, as a matter of transparency, she wished to make a declaration. With regard to ex parte contacts: She had received a call from the applicant, probably in June, in which he informed her that he had bought property and would need to annex it. She responded, "I'll bet it's a cherry stem", and he replied, "Yes". At that point she had told the applicant that the conversation was ex parte contact, and the call ended. Shortly after that, she received a call from a woman whose name she might provide, if needed. This woman stated that the applicant had called all of the Council members and said that her concern was not so much about the cherry stem as the applicant needed the annexation to continue to be an elector. Concerning conflicts of interest, she had checked with the ethics commission and was told that she had a potential conflict, but in this circumstance, it was just about annexation and would have no effect. As it relates to a larger issue that was of concern to her, she announced that she would nonetheless recuse herself because she thought it was the professional and collegial thing to do. She expressed pride in the Council, stating she believed that all members had acted honorably and voted as they would have under any other circumstance. Councilor LaMotte acknowledged his longtime opposition to cherry-stem annexation, which he regards as bad policy. After discussing reasons for his opposition, he stated that he had had several phone and email exchanges with the applicant, mostly through June. During that period, he observed, the applicant was lobbying all Council members individually to get this annexation straightened out. Next, he read from an email sent by Ms. Rooney to Joe Buck and copied to Mr. Espe; it discussed issues related to cherry stems, such as the City's responsibility for all facilities in the right-of-way and confusion about responsibilities of the City versus the County. Mayor Studebaker indicated that these points were not responsive to the request for Council members' declarations. Councilor LaMotte indicated that his opposition to cherry stems constituted both a City Council Regular Meeting Minutes Page 9 of 19 November 3, 2020 conflict of interest and bias. He also declared that his mayoral candidacy was a conflict of interest, as was the applicant's lobbying effort during the campaign. Therefore, he recused himself from voting on the matter before the Council. Councilor O'Neill stated that he had spoken with Joe Buck initially because sale of the property to Mr. Buck had been handled by Councilor O'Neill's wife. Councilor O'Neill had initiated this conversation in order to ensure that Mr. Buck had spoken with Mr. Powell regarding his eligibility to run for office. Also, Councilor O'Neill stated that he had worked for the Buck family as a general contractor. He expressed his belief that none of these points would have an effect on how he would vote on this annexation. Councilor Wendland described an instance of ex parte contact: Having made an offer on the subject property, the applicant had called him specifically to ask if he would support annexation into the City of Lake Oswego if he were to purchase the property. At that time the applicant had already announced his candidacy for a City Council position, and Councilor Wendland found this to be an awkward conversation. He did express to the applicant his general support for annexation of unincorporated properties when requested by owners; however, he told the applicant that his decision would depend on the actual application and particulars of this annexation. Further, he suggested that the applicant consider buying a property inside the city to remove this issue, but indicated that this fell on "deaf ears". As to bias, he disclosed that he had endorsed the applicant as a City Council candidate. When the applicant subsequently decided instead to run for Mayor, Councilor Wendland had already endorsed another candidate, whom he continues to support. For this reason, he stated, there might be some bias involved. In addition, he noted that the outcome of Council's decision on the annexation and the outcome of the election both have implicit bias involved. Regardless of the decision on annexation, if the applicant were to be elected, the Council and specifically Councilor Wendland could be accused of bias. He stated that he had no conflicts of interest or potential conflicts of interest to declare. Finally, he observed that the applicant had made the process complicated, awkward, and uncomfortable for many City staff members and for the Council, requiring countless hours that could have been directed elsewhere. This had made a straightforward City process into a complicated political matter before the Council. Nonetheless, Councilor Wendland advised that he could make a decision based only on the facts and he intended to participate in the process. Mr. Powell followed up with Councilor Wendland on his comments that seemed to characterize some items as bias. In a legal sense, he explained, it was not bias if Councilor Wendland could nevertheless base his decision only on the criteria and the facts, as reviewed earlier. He asked if he was correct in assuming that Councilor Wendland was not biased in the sense that he was able to base his decision only on those criteria. Councilor Wendland responded that he could make his decision based purely on a cherry-stem annexation application. Councilor Nguyen declared that he did not believe he had any conflicts of interest. With regard to bias, he noted that there could be a perception of bias as he supports and has endorsed Joe Buck for Mayor. That said, he believed he would be able to make a decision on the matter now before Council. He committed to only reviewing the facts of the case in making the decision. Councilor Manz stated that she had no conflict of interest. She believed she had no bias, but disclosed that she had endorsed Joe Buck when he was running for Council. She had not endorsed any candidate for Mayor. Regarding her duty to examine only the facts of the annexation, she stated that she could fulfill that obligation 100%, without conflict of interest or even the perception of bias. City Council Regular Meeting Minutes Page 10 of 19 November 3, 2020 Mayor Studebaker stated that he had talked with Joe Buck, but not about the matter before the Council. He had no bias or conflict of interest to declare. Mr. Powell asked if anyone present would challenge any City Councilor's right to hear the application. After affirming that no challenges had been heard, he indicated that Councilors Kohlhoff and LaMotte would be moved into the observer category, rather than the panel category. Ms. Simpson confirmed that this was correct; both Councilors would be brought back into the meeting for Agenda Item 6. Staff Report Mr. Espe drew Council's attention to the slide presentation accompanying the Council Report (Ordinance 2852 Annexing Property at 5950 Harrington Ave AN-20-0005). He first reviewed correspondence that had been received regarding the proposed annexation: Of nine pieces of correspondence, seven had been in opposition and two in favor of the annexation. Two of the letters were received from Mike Kohlhoff (Exhibits E-3 and E-5 to the Council Report). Staff received a phone call from Linda Callantine (Exhibit E-4), in which she had stated that she did not feel the annexation had been noticed to enough people; also, she was concerned that future increases in property taxes and utilities would displace many area residents and that Lake Oswego regulations were too strict. She also stated that she felt the only reason the applicant was annexing the property was to legitimize his bid for Mayor. Staff received other letters of opposition from Norma Holcombe (Exhibit E-6), Marlynn Rust (Exhibit E-7), Winona Hoffinger (Exhibit E-8), and Rosemary Dispenza Henry (Exhibit E-10). Staff would be addressing issues raised in Ms. Rust's letter, including cherry-stem annexations, the fairness of the applicant receiving City services when others in the unincorporated area received services from Clackamas County, the prospect of forced annexations with higher property taxes and utility fees, the condition of adjacent roadways, stormwater upgrades and associated costs, duplication of City services, and also inadequate notification. Two letters and one phone call were received in favor of the annexation: The letter from the Lake Forest Neighborhood Association (Exhibit E-9) expressed support for the annexation process and allowing property owners to apply for annexation. The Association noted its opposition to forced, or island, annexations by the City. Staff had also received a phone call from an adjacent resident at 16316 Lake Forest Blvd. who was in favor of the annexation and of providing sanitary sewer to the area. The second letter (Exhibit E-11) in favor was received from the applicant's representative, Jeff Condit of the Miller Nash Graham & Dunn law firm; it responded to issues raised by the opposing parties. Mr. Espe advised that staff had responded in the Council Report to several of the points in the Kohlhoff and other letters related to review of the annexation. He addressed several of these: (1) 90-day filing deadline. On occasion staff may accept applications less than 90 days prior to the prospective hearing date when workload allows and code requirements for processing the application, including noticing, can be met. (2) Ex parte contact. At the time of the public hearing, as just observed, City Council members have the opportunity to disclose any ex parte contacts regarding the application, as well as to make any necessary declarations of conflict of interest or bias. (3) Conflict of interest, biased residential qualifications, monetary gain from real estate commission. Staff agreed with the applicant's representative that the tentative decision made on election night avoids potential conflicts of interest and should not affect the outcome (Exhibit E- 11). If the annexation were to be approved at this meeting, the ordinance would not become effective until December 17th and the annexation would not become effective until well after the date of the election, after acceptance by the Secretary of State, Oregon Department of Revenue, City Council Regular Meeting Minutes Page 11 of 19 November 3, 2020 Metro, and Clackamas County. (4) Cherry-stem annexations. Staff had reviewed minutes of the September 18, 2018, City Council meeting, where a motion was made by Councilor Gudman and seconded by Councilor LaMotte to discontinue cherry-stem annexations. However, before the vote on the motion, the City Manager clarified that the motion was preliminary, that it was preliminary direction from Council, and that staff would return with specific policy language implementing it. At the December 18, 2018, Council meeting staff presented a draft resolution that addressed lot-by-lot and cherry-stem annexation. Motions on that resolution failed, and the Council did not provide any direction to conduct additional research or to prepare a revised annexation policy. Therefore, without an ordinance or specific policy language prohibiting cherry- stem annexations, staff has interpreted the motion on the policy resolution addressing cherry- stem annexations as ineffective. Therefore, staff adheres to the existing City code, the Comprehensive Plan, and the applicable Oregon statutes and Metro code requirements, while following the City's existing published friendly-annexation policies. In staff's view, this course of action was the best way to provide consistency and a degree of certainty for citizens making applications for annexation. Mr. Kohlhoff's follow-up letter received October 26, 2020, assumed that if Council were to approve this annexation, it must approve subsequent cherry-stem annexations, and further, notwithstanding the Council's failure to disallow cherry-stem annexations, the Council should apply general economic principles to actually deny the annexation. Citing the letter from the applicant's representative (Exhibit E-11), Mr. Espe advised that staff agrees that the land use decision has to be reviewed under the standards and criteria in effect at the time of the application and that the Council should not arbitrarily change policy to deny an application that otherwise complies with those applicable codes and criteria. The letter also notes that the City's comprehensive plan commits it to annexation and provision of services to the area. While the City is obligated to plan and provide services for the area regardless of when it is annexed, nothing in the City code requires the City to fund public services to this property upon annexation. Neither the City Engineer nor Police and Fire staff recommended denial of the annexation, he advised, but they could find the basis for denying future cherry-stem annexations, based on fiscal impact or diminished service levels as additional annexations proceed. The City Council, of course, could approve this annexation and deny future cherry-stem annexations if they found that a tipping point had been reached relative to service delivery, emergency response, streets, and other such factors. With accompanying slides Mr. Espe expanded on elements of the Council Report: (1) The proposal would include annexation of approximately 860 feet of public-right-of way along Mellon and Harrington avenues. Right-of-way along Mellon is a Clackamas County public access road; the maintenance jurisdiction and permitting authority for this street would fall under the City's jurisdiction and maintenance upon annexation. In response to concerns about future roadways and paving, he noted that the Urban Growth Management Plan and City Comprehensive Plan require public facilities to be provided within the Urban Services Boundary (USB) in a manner adopted by the Public Facilities Plan. The roadways would be added to the City's pavement management inventory, where they would be prioritized in conjunction with other streets throughout the city for future rehabilitation. He noted that this annexation was very similar to one at 5957 Seville Ave. approved by the City Council in 2010, and referenced several other cherry- stem annexations in the area in subsequent years. (2) In response to concerns about noticing, he detailed the written notification of the annexation to owners of surrounding properties and the notifications posted on the subject properties on October 14, 2020, 20 days prior to the date of public hearing, in compliance with Metro code and State law. Because of the proposed right-of- way annexation, 28 surrounding properties were within the 100-foot radius required for noticing; this resulted in notification to many more properties than would have been required for annexation of the residential property only. (3) Regarding utilities, sanitary sewer service was available from City Council Regular Meeting Minutes Page 12 of 19 November 3, 2020 the City collection line approximately 1,600 feet south of the property. He outlined two available options for a future sewer extension to the property, with related details. As the septic had been replaced in recent redevelopment of the property, the owner did not intend to extend or connect to the existing sanitary line. Water service for the property would continue to be provided by the Lake Grove Water District. Location of the nearest fire hydrant was identified. (4) With regard to fire, police, and other potential duplication of services, he advised that the City maintains its mutual-aid agreements with abutting County and fire districts; annexation would not impair service nor would it cost the City additional funds to serve this property. (5) On-site surface water management would fall under various provisions of City code if triggered by development. However, it does not appear that any new impervious surfaces would be proposed as part of the annexation. In conclusion, staff found that the property is within the USB, future sewer has been anticipated and planned for the City's sewer master plan, and future roadway improvements will be prioritized and funded through the City's pavement management inventory and will be considered in conjunction with other streets throughout the city for future rehabilitation and programming. The property cannot be further divided, and no development or increase in service burden is anticipated. Staff further finds that the annexation is timely with regard to the public facilities and recommends approval at this point. He reviewed the suggested motion as shown in the agenda. With Council's decision on the annexation, he noted, staff could provide direction on a future policy which would include some limitations on cherry-stem annexations in the future. However, consideration would need to be given to revision of Comprehensive Plan policies to allow sewer connections to be made prior to annexations for those properties that would experience septic emergencies. Testimony Mayor Studebaker called for the applicant's testimony. • Jeff Condit, Miller Nash Graham & Dunn Mr. Condit advised that he was an attorney at Miller Nash Graham and Dunn representing Joe Buck, the applicant, for the annexation. He expressed appreciation for Council's declarations regarding conflicts of interest and ex parte contact, acknowledging that an awkward situation existed. This was one reason that the applicant wanted to set the hearing over to today's date. However, he stated, the fact that Mr. Buck is a candidate for Mayor in today's election is completely irrelevant to the issue before the Council tonight, which he believed the Councilors had expressed. The question is whether or not this annexation application complies with the applicable criteria. For the reasons stated in the staff report and by Mr. Espe, the applicant believes that the application does meet the criteria and should be approved. Next, he addressed issues that had been raised by persons opposing the annexation: (1) Regarding City Council policy, or lack thereof, on cherry-stem annexations, it was clear at the September 18, 2018, meeting that the City Manager had clarified before the vote was held that it was a preliminary decision and that that was the understanding of the Council. The Council could have made a correction when approving the minutes of that meeting, but did not do so. Therefore, the effect of that motion was not to change the policy with regard to cherry-stem annexations. When the proposed policy change came before the Council subsequently, it did not pass, so the actual extant policy is the one quoted in the staff report, where the Council supports individual annexations regardless of whether they allow irregular boundaries. He reiterated Mr. Espe's statement that approval of this annexation did not bind the Council to approve future annexation City Council Regular Meeting Minutes Page 13 of 19 November 3, 2020 applications. If the Council did desire to limit cherry-stem annexations, the appropriate way to do that would be to develop a policy that does so, adopt it, and then apply it prospectively to new applications. As also stated by Mr. Espe, the State statute requires the Council to apply the standards and criteria in effect at the time of the application, i.e., the one quoted in the staff report. Mr. Condit noted that a motion would not have the effect of changing a policy; Council would have had to consider replacement language and to actually repeal or amend an existing policy. Therefore, it was clear that the motion was intended to be preliminary. (2)As to general costs, he recognized the issues with this and other urban-level subdivisions that had been allowed to develop under County jurisdiction. Nonetheless,the Comprehensive Plan has already determined that the City would ultimately annex and serve this area, and the City is planning accordingly. The related costs will be faced by the City at some point, regardless of whether it allows cherry-stem annexations or permits this annexation to proceed. If it does address the cherry-stem annexation matter in the future, Council needs to consider compliance with the Comprehensive Plan. As seen with this application, the weight of opinion in this type of subdivision is against annexation to the city because of higher taxes or utility costs. Whether a policy allowed all cherry-stem annexations or only some, it needed to be considered in terms of its effect on achieving compliance with the Comprehensive Plan. (3) He addressed comments received from a majority of the property owners who testified in opposition. Regarding cost-of-service issues: The property, which has an existing house on it, is too small to be partitioned and so would not have any impacts that would require improvements to the public facilities on that street. Because there is a relatively new sanitary septic system on the site, the property was not likely to cause a need to extend sewer services anytime soon. Additionally, there was concern about being forced to annex because of the cherry-stem annexation. Referring to his letter to the Council (Exhibit E-11), he discussed the 2007 amendment of the State statute related to cherry-stem annexation. In the case of the annexation now before Council, a look at the map showed that it would be many years before any of the surrounding properties would actually face potential forced island annexation. He noted that, even though the statute permits the City Council to force annexation in the case of an island annexation, nothing requires the Council to do so. He understood Council's policy had been not to force annexation. He indicated that approval of this annexation would not impact property owners'fear about forced annexation nor about increased property taxes. The only property being annexed other than Mr. Buck's property was the right-of-way; the fact that the right-of-way was within the city or the county would not affect valuation of the surrounding residential properties. While understanding the owners' concerns, he did not think those concerns were supported by the evidence in the record. Finally, he thanked the Lake Forest Neighborhood Association for supporting the annexation. • Mike Kohlhoff Mr. Kohlhoff quoted from minutes of the September 18, 2018, City Council meeting (9-18-2018 Agenda Item 5.2 Annexation Policy), including a staff recommendation to "at least on a trial basis discontinue `cherry-stem annexations', and direct staff to return with a more logical and efficient policy". Various Council members' expressions of concern and outright opposition to cherry-stem annexations were cited, along with staff comments indicating that discontinuing them would allow staff to work on larger-area annexations. Councilor Gudman's motion to "no longer do cherry stems" had been unanimously adopted; it had been unambiguous, containing no language relating to being temporary. The minutes reflect that the City Manager's comment related to preliminary direction had occurred after the motion had been made; this, Mr. Kohlhoff stated, was gratuitous. Minutes of the December 18, 2018, Council meeting reflected that an ordinance was proposed with a more comprehensive annexation policy, including that for cherry stems, but the related motion had died based on an attempt to amend the ordinance. In his view, staff City Council Regular Meeting Minutes Page 14 of 19 November 3, 2020 misconstrues the law of implied relief, as it would have come into play if the December 18, 2018, ordinance had been adopted; with no action taken, nothing is repealed and the earlier action stands, preliminary or no. He discussed a 2016 action of the legislature to increase the supply of housing by reducing requirements for area-wide land annexations through a consent of owners and electors process; the statute expressly pre-empted local voting requirements and also provided that the proposal for annexation conform to all other requirements of the city's ordinances.While recognizing that an area-wide annexation was not before the Council, he stated that two things were clear: Each petition for a consensual cherry-stem annexation is heard on its own merits and the fiscal cost considerations are very much a part of State and local land use law when it comes to providing public facilities such as roads. For any annexation to be reasonable, it must be demonstrated to be consistent with local or State land use criteria, citing Morsman vs. City of Madras. Also pertinent are: statewide Goal 11 as it deals with provision of public facilities, including roads within urban growth boundaries such as this area within Lake Oswego's USB, and Chapter 666 of the Oregon Administrative Rules, which implements Goal 11 and provides guidelines for cities, including costs as a factor in providing such public facilities. The City's Comprehensive Plan, code, and implementing ordinances and policies clearly support the efficient provision of public facilities, including transportation facilities such as roads, as well. Land use law also provides for cities to adopt and implement a facilities plan, in Lake Oswego's case the CIP, with cost provisions for orderly and efficient provision of services. The very issue of concern in the September 18, 2018, Council discussion of cherry-stem annexation was about the orderly and efficient provision of facilities. Thus, he stated, it was reasonable to interpret the Council policy of disfavoring cherry-stem annexation to be based on land use fiscal policy concerns such as the efficient provision of public road infrastructure; it was also in keeping with an individualized review of cherry-stem annexation petitions based on those concerns. Also, as the parcel already contains a house and there would be no effect on the supply of housing, the real effect is on the orderly and efficient provision of public facilities of the cherry stem. The three road segments are not satisfactory to meet standards for public facilities. Full reconstruction would require a significant expenditure and hence amendment of the CIP after annexation. Revenues from annexation would not be anywhere near sufficient to cover the costs, and the cost to City taxpayers would be disproportionate to the return. To delay those reconstruction costs carried risks: Deterioration of the roads could accelerate and the 20-year CIP cycle might not be able to accommodate that, with other City projects in the wings. This was not good policy, he stated. It is good policy to apply a cost-based approach. The City's land use ordinances provide for this and Council is able to apply them. • Marlynn Rust Introducing herself as a retired teacher in the Lake Oswego School District and a 39-year resident of Harrington Avenue, Ms. Rust indicated that she was following up on her written testimony submitted earlier. Observing the political nature of the matter, she was addressing it strictly due to the associated impacts for her as a property owner and neighbor. The annexation brought no benefits but many costs to the City of Lake Oswego. Examples were cited: (1)The unsatisfactory PCI of the streets that would come under the City's jurisdiction with annexation of the public right- of-way. Their condition would require the City to expend funds to bring them to a satisfactory level; do taxpayers of the City want to pay the cost to the benefit of just one homeowner? The petitioner's property would generate$1,047 in tax revenue for the City, yet hundreds of thousands of dollars would be incurred for street repaving and reconstruction. It would be a high priority of Ms. Rust and the neighborhood association to ensure that work was done. She questioned the expense to the City, as well as the extent of associated paving that would be done in front of the property at 6073 SW Harrington Ave. Also, was the City willing to take on costs of the two City Council Regular Meeting Minutes Page 15 of 19 November 3, 2020 additional storm facilities (Attachment B, p 5)for annexing one home? She asserted there was a failure to notice all other 11 property owners on Harrington Ave. of the annexation, a failure of the City to assure a democratic process; a 2008 cherry-stem annexation was unanimously opposed in 2008, even by a petitioner, she indicated. Further, after the September 18, 2018, motion to disallow cherry stems, nothing had been followed up on. Even if this annexation was approved, she strongly recommended that the Council undertake development of written policies and rules associated with cherry-stem annexation. Three of the five homeowners on SW Mellon Ave. who were notified oppose this annexation. She was one of the 11 owners on Harrington who was not notified, but stated her opposition to the annexation. It appeared the City's costs would exceed the benefits associated with this annexation, and she found it hard to believe the City could approve it if they truly were looking out for the benefit and welfare of all its citizens. Finally, she quoted a portion of the text under Annexation in the Council Report (p 6): "The City Council supports the policy of friendly annexation of residential areas. Annexation will be with the consent of the owners of affected residential properties...". Approval of this annexation would be going against their policy, she stated, and although the petitioner indicates this is a friendly annexation, it is not. Mayor Studebaker called for any neutral testimony. None being heard, he called for the applicant's rebuttal. Mr. Condit expressed agreement with staffs report about the effect of the September 18, 2018, motion: It was interlocutory, meaning it was an interim step that directed staff to bring back a policy, which subsequently did not pass. Therefore, the policy that is in effect is the one in the staff report that approves friendly annexations, regardless of the effect on boundaries. Friendly annexation, he noted, meant annexation with the consent of the property owner. As to long-term costs, he emphasized that its Comprehensive Plan provided that the City will ultimately be responsible for those costs. Therefore, the best plan would be to annex these territories as quickly as possible so as to gain more tax base and perhaps the opportunity for local improvement districts. It was a certainty that Clackamas County was not going to improve these streets to City standards before they were annexed. He reiterated that, once the streets become part of the city, they will be the City's maintenance responsibility, becoming an element of the CIP; the City then decides if improvements can be made, based on consideration of need and available funding. As discussed in his written materials, delay in addressing these costs generally does not make them cheaper. Regarding testimony on impacts: Ms. Rust's concerns about costs were understandable, but approval of this annexation would not have the described effect for the reasons discussed in his testimony. In conclusion, his client had demonstrated compliance with all of the applicable criteria, and the Council was urged to approve the annexation based on the findings in the staff report. Noting that this was the initial evidentiary hearing, Mr. Powell announced that any party who had testified in this hearing might request an opportunity to present additional evidence. If they so requested, either the public hearing would be continued to a date certain not less than seven days after today's date or the record would remain open for at least seven days to enable the parties to submit additional written evidence or testimony. He then asked if there was any request to hold the record open to submit additional evidence or testimony. No requests were heard. Mayor Studebaker closed the public hearing. Mr. Powell announced that, unless waived by the applicant, the Council would allow the applicant at least seven days after the record was closed to allow other parties to submit final written City Council Regular Meeting Minutes Page 16 of 19 November 3, 2020 arguments in support of the application. Mr. Condit stated that the applicant waived the right to submit additional rebuttal. Councilor Nguyen moved to tentatively approve Ordinance 2852 and direct staff to present a final ordinance with findings on November 17, 2020. Councilor O'Neill seconded the motion. In recalling the September-to-December, 2018, period, Councilor Manz stated that there had been considerable discussion of cherry-stem annexation. However, Council had let the item drop because their decision was to pursue the Southwood Park area annexation as a sort of experiment. The Southwood annexation vote subsequently failed, but she recalled much talk among Council members about maintaining the status quo, i.e., allowing cherry-stem annexations as Council had been doing, rather than a determination that they were or were not allowed. Another aspect of the overall Council conversation had related to the CIP. It was made clear to everyone, she noted, that there would not be a re-prioritization of road repairs or other infrastructure items for newly-annexed properties; these would be ranked as with any other CIP projects. Based on this understanding, she found arguments about the need for immediate capital improvements in the case of this annexation to be incorrect. As suggested by Mr. Condit, it was incumbent on the City Council to determine a policy on cherry-stem annexation in order to avoid having this discussion once again. She reiterated that where Council had left off in the discussion was: Cherry-stem annexations were not desirable, but at the very least, were acceptable. Mayor Studebaker stated that he had the same recollection. He also recalled that Council had approved a couple of cherry-stem annexations between December of 2018 and the present time. Mr. Espe confirmed this; though not as large as the one now before Council, there had been some cherry-stem annexations during that period. Councilor Wendland expressed confusion about the City's policy, in light of Mr. Kohlhoff's testimony concerning the Council's unanimous vote against cherry-stem annexation versus Mr. Condit's testimony that cherry-stem annexations are allowed. Mr. Powell indicated that cherry stems were allowed. He reviewed the proceedings on September 18, 2018, noting that the motion on that date was made to disallow cherry stems and, as Mr. Kohlhoff pointed out, the City Manager's statement followed the motion. However, that statement, in which he clarified before the Council that staff was taking this as preliminary direction and was to return with a detailed policy relating to this and the other issues, preceded the vote. No Council member contradicted the statement nor said otherwise, and the vote was taken. Staff has interpreted that to mean that the vote was intended consistent with the City Manager's statement. Supporting that belief was the fact that the motion as presented would not have allowed for certain exceptions, e.g., multiple lots, and Council did want to see a comprehensive policy that embodied exceptions, other details, and such. Then, when the policy was presented to Council, it was not voted in. Further, as pointed out by the Mayor, Council has allowed cherry-stem annexations on a couple of occasions since. Together, he stated that these factors provide a pretty strong indication that staff was not out of bounds, in any event, in taking that September 18, 2018, motion as preliminary direction to come back to Council with a policy, which was never adopted. Therefore, he concluded, at the present time there is no prohibition on cherry stems. As he understands it, staff is processing requests with the same sort of approach as they have all along, unless and until they hear something different from the Council. Councilor Wendland asked if it was true that in the September 2018 meeting Council had voted 7-0 to disallow cherry stems. Mayor Studebaker explained that it was taken in the context of the City Council Regular Meeting Minutes Page 17 of 19 November 3, 2020 whole issue of annexation that Council was considering, e.g., getting groups of housing together for larger annexations. Councilor Wendland indicated that he wanted more clarity about Council's purpose or intent at that time as it preceded his service on Council. In ensuing discussion, Mr. Powell confirmed that there had been a unanimous vote by the Council to pursue some sort of prohibition on cherry stems; there had been a consensus to do something about them. He reiterated that staff was to bring back a policy on it, and after it was presented, the Council did not adopt a policy nor did it give further direction. This left the matter where it began. Councilor Nguyen recalled discussions of the need for a policy on cherry-stem annexations over the course of his term on the Council. Although there had been opportunities to address it in 2019 and at Council goal-setting in 2020, there was still no new policy. Therefore, he agreed with staff that they have to work with what they have. There had been ample opportunity to enact a policy change, and if it was important to Council, that would have been done. Councilor O'Neill offered earlier background on issues leading to cherry stems. One factor was the position of a former Councilor who felt he had momentum to get large neighborhoods to support annexation. When it came to a situation where a cherry stem was needed, the City did not have a firm policy for or against; rather, there had been a longtime policy that a property owner wishing to annex was welcomed but was not forced to do so. That policy had consequences: the cherry stem. After staff had brought the policy information back to Council in 2018, it had been voted down. Council was more interested in continuing to allow the friendly annexation for any owner who wished to annex to the City, without any restrictions, he indicated. A roll call vote was held, and the motion passed. with Mayor Studebaker and Councilors O'Neill, Nguyen, Wendland, and Manz voting `aye'. (5-0) Councilors Kohlhoff and LaMotte were recused. Mayor Studebaker called for Councilors Kohlhoff and LaMotte to rejoin the meeting. 6. INFORMATION FROM COUNCIL Councilor Wendland reported that the Public Advisory Committee had progressed toward reaching consensus on an intergovernmental agreement (IGA) for the Recreation and Aquatics Center. The group had reached agreement on most aspects of the IGA, with only a few technical points remaining before it would be presented in concept to the School Board and the City Council. He believed it would reflect the instructions of both the School Board and Council to their staffs. It also offered an example of Lake Oswego working together to serve city taxpayers. Councilor O'Neill expressed thanks to the two mayoral candidates currently serving on the City Council. He commended them for well-run campaigns and wished them good luck. These sentiments were also extended to all of the candidates for Councilor positions. Mayor Studebaker expressed his concurrence. 7. REPORTS OF OFFICERS Ms. Bennett reported that representatives of the cities of Tualatin, West Linn, and Lake Oswego had met about three weeks earlier to discuss their various intentions related to Stafford. Along with Ms. Bennett, Lake Oswego was represented by Mayor Studebaker, Councilor Wendland, and Mr. Siegel. Their expectations of the other cities' mindsets were largely borne out by the meeting: Tualatin is ready to begin planning for the area and would like the support of the other two cities; West Linn considers that unlikely. A significant disagreement among the three cities City Council Regular Meeting Minutes Page 18 of 19 November 3, 2020 about the pace of proceeding was apparent. There was considerable discussion about tolling of 1-205 and funding for 1-205 expansion. All three cities recognized that there would be significant turnover in their elective bodies in January 2021, so they agreed to meet again in December to discuss how that might affect the desire to move forward. Mayor Studebaker noted that Council members should be aware the City of Tualatin has an area of interest that would extend to Stafford Rd. West Linn wants to have its interests go to Stafford Rd., as well, which leaves nothing for Lake Oswego. It was made clear, he indicated, that the City does not completely support the interests expressed by either Tualatin or West Linn. Ms. Bennett opined that all three cities want to include Wankers Corner. While finding the discussion fascinating, she did not believe much progress should be expected in 2020. Councilor Wendland noted that a point of unanimous agreement was that none of the cities were in support of tolling. They considered it a bad decision unless tolling were to be implemented throughout the metropolitan area; it should not be focused only on 1-205. Ms. Bennett affirmed that the meeting was very collegial. Clearly, she noted, Tualatin views the Stafford area as key to providing much-needed land for housing, and essential for adding residents to their community. Brief related discussion followed. 8. ADJOURNMENT Mayor Studebaker adjourned the meeting at 5:50 p.m. Respectfully submitted, vovti) Kari Linder, City Recorder Approved by the City Council on January 5, 2021 l l Joseph M; Buck, Mayor City Council Regular Meeting Minutes Page 19 of 19 November 3, 2020