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HomeMy WebLinkAboutApproved Minutes - 2009-03-10 Special0 CITY COUNCIL SPECIAL MEETING MINUTES March 10, 2009 acwN Mayor Jack Hoffman called the special City Council meeting to order at 6:37 p.m. on March 10, 2009, in the City Council Chambers, 380 A Avenue Present: Mayor Hoffman, Councilors Hennagin, Moncrieff, Olson, Tierney, and Johnson. Councilor Jordan was excused. Staff Present: Alex McIntyre, City Manager; David Powell, City Attorney; Robyn Christie, City Recorder; Debra Andreades, Senior Planner Mayor Hoffman stated that Councilor Jordan was in Washington, D.C. as part of JPACT advocating on the region's behalf for transportation dollars for local governments. He discussed the request from the Waluga Neighborhood Association that he recuse himself from this hearing because of bias and/or personal interest. The Association cited the Mayor's testimony (as a citizen) in support of the Oakridge housing application before the Development Review Commission (DRC) and the City Council, and his involvement in creating the City's 50+ Task Force and the Affordable Housing Tasking. Mayor Hoffman stated that he was not recusing himself for any of the reasons cited in the letter or because he felt that he had a bias or a personal interest in the application. He indicated that he was comfortable in making a decision on this application based solely on the legal criteria. However, he pointed out that one of the foundational aspects of the Oregon land use system was trust. He recalled that during the campaign, he heard constant comments from citizens about how they have lost trust in the local government. He said that as part of restoring trust in the local government, he was stepping down and would not participate in the decision. He indicated that while there were only five Council members seated tonight, Councilor Jordan would review the record and audio recordings before the final deliberations, so that she would be able to participate at that time. Mayor Hoffman recused himself from the hearing and left the room. Councilor Olson moved to designate Councilor Kristin Johnson as the Presiding Officer for this hearing. Councilor Hennagin seconded the motion. A voice vote was taken, and the motionap ssed with Councilors Hennagin, Moncrieff, Olson, Tierney, and Johnson voting `aye.' (5-0) 3. PUBLIC HEARING 3.1 Appeal of a Development Review Commission (DRC) Decision to deny a development application, following remand from the Oregon Land Use Board of Appeals (LUBA), for a 45 -unit Congregate Housing facility. The site is located at 4255 Oakridge Road (Tax Lot 400 of Tax Map 21 E08 CB) Mr. Powell asked if any Council member had any ex parte contacts to declare. Councilor Hennagin reported that he had an inadvertent conversation with a former City Councilor, in which that former Councilor expressed his opinion about the intent of the Council that adopted the ordinance in question here. He said that he was confident that that conversation would not affect his decision as he was professionally trained in interpreting ordinances, reviewing evidence, and assessing evidence on both sides of a question. City Council Special Meeting Minutes Page 1 of 25 March 10, 2009 Councilor Olson reported that she had a similar brief conversation in passing with a former City Councilor. She said that she cut off the conversation as soon as that former Councilor mentioned this upcoming hearing. Councilor Moncrieff stated that she has not had any ex parte contacts since she declared her candidacy for Councilor, but, prior to that she was a member of LONAC. She indicated that the general conversations she heard did not pertain to the issues at hand tonight, and that she was unbiased. Councilor Tierney stated that he has had ex parte contacts, including his position as former chair of the DRC at the original hearing on this application. He said that he voted to accept the application, which was then appealed. He recalled talking with individuals during his campaign about this subject. He mentioned an individual approached him a few weeks ago at a City Council meeting, indicating that he would be back to discuss this upcoming appeal, but they did not have a substantive conversation. He confirmed to Mr. Powell that any prior conversations had nothing to do with the remand issue before the Council tonight. He stated that he also received a letter from the Waluga Neighborhood Association asking him to recuse himself from this hearing, unless he could indicate that he was not biased. He said that he participated on the DRC in an active role as a member of a community body, which he did not think, in and of itself, constituted bias. He commented that he did not recall the issue before the Council on remand as being a substantive part of the conversation at all. He indicated that upon consulting the City Attorney, Mr. Powell advised him that his participation on the DRC did not constitute grounds for recusing himself from a remand hearing. Mr. Powell asked if any Councilors wished to declare bias or conflict of interest. There were none. There were no challenges. He discussed the rules of evidence, beginning with the history of this application by Northwest Housing Alternatives for a conditional use permit for a congregate housing facility at 4255 Oakridge Road. Following the DRC approval of the application and the Council's upholding of that decision on appeal, the Waluga Neighborhood Association appealed the Council's decision to the Land Use Board of Appeals (LUBA) on five assignments of error. He said that LUBA upheld the Council's decision on four of the five assignments of error but remanded the case on one assignment of error: whether the proposed development met the definition of congregate housing in the City Code, with its wording of "supporting independent life styles for those that have life function disabilities due to age, medical, or mental conditions." He explained that the original Council findings interpreted the definition as assuming that with age came disabilities. LUBA disallowed that assumption, and stated that "the City could not ignore the words 'due to' and eliminate the need for a demonstration of an actual life function disability or a causative relationship between age and the purported disability." The Council needed to address what the words 'due to age' meant. At its remand hearing, the DRC found that the applicant did not make the demonstration required by LUBA and denied the application. The applicant has appealed that decision to the City Council. Mr. Powell explained that the Council review tonight was limited to that one remand issue of whether the application qualified as congregate housing in light of the requirement that it be for persons with life function disabilities due to age. He stated that any other issue was irrelevant, such as issues about the development that were either decided in the original case or upheld by LUBA on appeal. He explained the rules of evidence and testimony for an appeal hearing. He reviewed hearing procedure and testimony time limits. Councilor H nnagin pointed out that one could interpret the ordinance to say that congregate housing only had to have self-contained apartments containing cooking facilities and support of City Council Special Meeting Minutes Page 2 of 25 March 10, 2009 independent lifestyles for those with life function disabilities, and that it did not restrict who the residents could be, including based on age. He asked if Mr. Powell was saying that the Council could not address the issue from that standpoint. Mr. Powell clarified that the issue to which the Council was limited was how the definition applied in determining that the housing was to support independent lifestyles for persons with disabilities due to age, etc. He explained that that did not mean that the Council could not interpret the issue as described by Councilor Hennagin, but the Council did need to remember that LUBA directed the remand for the purpose of addressing what 'due to age' meant. Councilor Hennagin acknowledged Mr. Powell's point that this interpretation could open the City up to another appeal. Mr. Powell reiterated that the Council could interpret the definition with relation to what kind of showing an applicant must make in order to meet the qualification as described. He emphasized that the Council was not to go outside that issue and discuss the external building design, traffic, or parking. He clarified that the one exception to discussing physical things was if the Council decided that the building required internal re -design to meet the disability requirements. He noted that the Council would have to send the application back to the DRC to obtain more evidence on that exception. STAFF REPORT Ms. Andreades dealt with several matters pertaining to business of record. She reviewed the new exhibits received since the packet went out (Exhibits G180-183, G221-223, and F25-26). She reviewed the specific information in these exhibits that was not included in the DRC record: G183 on pp. 1 and 5, and F26 on pp. 5 and 6. She stated that these exhibits were from people with standing, and part of the record. She informed the Council that she has received 40 letters in the last two weeks from people who did not have standing. She recommended that the Council not receive these letters (Exhibits G199A to G199B-D). Councilor Hennagin moved to exclude those items from evidence. Councilor Tierney seconded the motion. A voice vote was taken, and the motionap ssed with Presiding Officer Johnson, Councilors Hennagin, Moncrieff, Olson, and Tierney voting 'aye.' (5-0) Ms. Andreades gave a PowerPoint presentation. She presented slides showing the location of the Oakridge Park project and its zoning and use context, as well as its final approved design (first floor plan). She noted that although zoning of the Oakridge Park project changed to NC/R-10 with the adoption of the Lake Grove Village Center Plan, staff reviewed the application under the zone in place at the time of the application submittal. She discussed the four issues involved with the definition of congregate housing (p.3) per the LUBA remand. 1) The 'due to' aspect of the definition could not be ignored. 2) What was the definition of 'disability' in terms of defining 'life function disability' in the definition of congregate housing? 3) Were the internal design and support service requirements included in the definition satisfied by the applicant's proposal? 4) Did the definition actually require 100% occupancy by people with disabilities? 1) The 'due to' aspect of the definition could not be ignored. Ms. Andreades said that the applicant argued that LUBA did not make a strict interpretation of how to read 'due to.' Therefore, either showing a life function disability or demonstrating a causative relationship would meet the 'due to' threshold of the definition. She clarified that the question was whether LUBA meant 'causative relationship' to mean an 'absolute cause' (directly caused by) or 'relationship to,' which allowed for correlation. She stated that Northwest Housing argued that 'a causative relationship' in the LUBA opinion, and the 'due to' in the Code definition did not mean 'caused by.' City Council Special Meeting Minutes Page 3 of 25 March 10, 2009 She indicated that the DRC made a different interpretation, in which it interpreted 'a causative relationship' as meaning 'caused by' and therefore, concluded that age must cause an actual life function disability. The DRC found that the applicant did not provide evidence that age alone caused a life function disability. She indicated that while the applicant agreed that age alone was not a cause of disability, they did show that with age came certain disabilities. At a certain age, there was a high correlation with disability, and therefore, there would be a prevalence of disability as people aged. She said that the applicant argued that the causative relationship was all the LUBA required. She indicated that the first question on this 'due to' issue was whether there was a sufficient correlation between a person's age and the prevalence of that person having a disability, whatever the cause. 2) What was the definition of 'disability' in terms of defining 'life function disability' in the definition of congregate housing? Ms. Andreades indicated that the opponents did not dispute that there was a correlation between age and life function disability, but they defined 'disability' differently than the applicant. The applicant included physical limitations, while the opponents factored out physical limitations and retained non -mobility. Consequently, the applicant found a 73% correlation between age and disability (Exhibits F27 - F31), while the opponents found a 33% correlation (Exhibits F52 and F53). She stated that in defining 'disability', the staff review of the legislative history (Exhibit F43) found that the Council's intent was consistent with the Americans with Disabilities Act (ADA) 2008 definition: disability substantially limited major life functions. She indicated that the applicant has requested that the City use the ADA definition of disability to define 'life function disability' under congregate housing. She noted the question of whether the correlation found by applying the ADA definition was consistent with the phrase "life function disabilities due to age, medical, or mental conditions" used in the definition of congregate housing. 3) Were the internal design and support service requirements included in the definition satisfied by the applicant's proposal? Ms. Andreades said that the applicant contended that the DRC erred in not considering that the proposed internal design and supportive services were an important part of the proposal. They argued that by not considering it, the DRC disregarded the portion of the Lake Oswego Code (LOC) definition of congregate housing that noted the varying levels of support services provided by congregate housing. She noted that in Exhibits F282 through F284, the applicant outlined the design features and support services intended to accommodate those with disabilities. She mentioned Exhibit G-105, in which the Lake Grove Presbyterian Church outlined how it intended to provide those services. She referenced the applicant's statement that the internal design of the building attracted people who needed those services, and not those who did not need them. 4) Did the definition actually require 100% occupancy by people with disabilities? Ms. Andreades said that the applicant's data showed that there was a correlation between low- income older persons and a need of supportive services. She noted several questions related to 100% occupancy. Would that correlation result in attracting people to a facility that provided those services? Would that correlation result in attracting people who did not need those services? Did that mean that the Council would require 100% for people with disabilities? Did that mean if the disabled spouse passed away, that the non -disabled spouse would be removed from the building? Ms. Andreades indicated that staff based its interpretation of the LUBA decision on the Council findings in the 2007 appeal hearing, the nature of the correlation itself, and the fact that the Code did not prohibit less than 100%. Staff concluded that the proposed facility would meet the definition of congregate housing. City Council Special Meeting Minutes Page 4 of 25 March 10, 2009 COUNCIL QUESTIONS Ms. Andread s indicated to Councilor Hennagin that she presented the same staff position to the DRC. She confirmed that this facility included units designed with ADA accessible features, such as wider doorways, etc., to accommodate people with wheelchairs. She noted that other units could be made accessible. Councilor Tierney referenced Exhibit F4, lines 9 and 10: "Thus in order to qualify for congregate housing, the occupant must have a life function disability." He asked how staff jumped from that sentence to a position where not every occupant had to have a life function disability. Ms. Andreades concurred that the LUBA opinion included that phrase. She explained that staff focused its analysis of LUBA's opinion on Exhibit F5, where LUBA used the term 'causative relationship,' (line 7) in denying that assignment of error, and not on Exhibit 4, where LUBA did not say anything about 'causative relationship.' Mr. Powell concurred with Ms. Andreades that this was an interpretation. He noted that one could read the language literally as saying that everyone must have disabilities. One could also read it as saying that because congregate housing must serve those that have life function disabilities, the occupants must have life function disabilities. The question was whether that meant that 100% of the occupants must have life function disabilities. He indicated that what LUBA was saying was that the Council could not ignore the fact that the people living in this facility would have disabilities. He pointed out that the issue was how literally to interpret LUBA's language. He said that the DRC interpreted the wording literally throughout, but the applicant would likely suggest that there were alternate interpretations possible. Councilor Tierney commented that he did not see a definition of what 'causative relationship' meant. He indicated that he was also curious about people's opinions about the wording of the ordinance itself. He wondered whether the listing of services to be provided in congregate housing had a correlation to a life function disability. PUBLIC TESTIMONY Presiding Officer Johnson opened the hearing to public testimony. APPELLANT • Ed Sullivan, attorney for Northwest Housing Alternatives, He pointed out that the issue of tenant eligibility for congregate housing had not been an issue before either the DRC or the City Council, given the Planning Department's advice that this was the type of housing for which the Council had revised the Code to provide. At the time, the Council appeared to agree that as people aged, they were more prone to the consequences of age, such as increasing incidents of mental and physical disabilities. He argued that the Council intended congregate housing and its associated services to serve an aging population. He stated that LUBA's sole reason for remanding the case was the City's failure to make findings to interpret the 'due to' language in the ordinance. He argued that upon remand, the DRC failed to make those findings as well. He described this failure as critical because LUBA concluded in the absence of those findings, that age was not an automatic cause for life function disabilities. Therefore, the City must either require that each tenant qualify has having a physical or mental disability, or the demonstration of a correlation between age and life function disability. He argued that the alternatives LUBA provided were not dicta, i.e., necessary to their decision. He stated that LUBA did not exhaust the universe of possible alternatives in its decision; it merely said that the City's implicit findings equating age with disability were incorrect. He referred to the lengthy memorandum he submitted outlining the issues and details. He pointed out that this was a question of the interpretation of a local code provision; it was the Council's responsibility to make this interpretation. He cited the DRC's statement that it was City Council Special Meeting Minutes Page 5 of 25 March 10, 2009 uncomfortable doing anything other than applying the law, as it was the Council's job to interpret the law. He stated that LUBA would uphold the Council's interpretation as long as it was consistent with the purpose and policy for which the ordinance was adopted, and with applicable federal and state law, including the ADA and Fair Housing Act as they existed at the time of application. He stated that there was overwhelming evidence that Lake Oswego needed senior housing in order to allow seniors to remain in Lake Oswego as they aged. He commented that seniors could not stay here if housing supporting independent lifestyles was not available. He said that they have submitted evidence showing that the City created congregate housing as a use category in order to serve all seniors, regardless of any disability. He noted that no one testifying tonight disputed that there was a clear correlation between age and disability. He cited the scientific evidence provided from scholars and professionals showing that advancing age was correlated to the increasing incidence of physical and mental disability. He indicated that while the minimum age for qualification for this type of senior housing under the law was 62, their evidence showed that the average tenant age was 70, the age at which the data showed a definite correlation between age and disability. He argued that the DRC took the easy way out of requiring an individualized showing of disability by applicants, and neither refuted nor even considered the appellant's evidence. He referenced an issue raised by Councilor Hennagin. He noted that one of their three bases for appeal was that the definition of congregate housing emphasized building design and services that would support an independent lifestyle. He argued that the definition did not say that every person had to be disabled as a requirement of tenancy. He stated that the legislative history supported that conclusion, given the Council discussion about what types of amenities were necessary to support independent lifestyles. He reiterated that the Code interpretation had to also be consistent with the federal Fair Housing Act and the ADA. He stated their belief that the DRC interpretation violated both of these acts. He held that both of these acts applied to City land use regulations, as the general rule that state and local governments could not discriminate in the application of land use regulations based on familial status or disability was federal law. He mentioned the two exceptions to the discrimination prohibition. One could provide housing for people with specific disabilities, such as blindness or deafness, and one could provide housing for tenants 62 years or older, without violating federal law. He stated that a local government could neither ask nor deny disabled and able-bodied seniors from living together. He argued that if the plain language of those provisions could not be subject to that kind of interpretation—so that the 'due to' meant a correlation between life function disability and age, medical or mental condition—then a reasonable accommodation under the Fair Housing Act and the ADA was necessary. He contended that the ADA prohibited the City from requiring the applicant to ask about disability, and from requiring the applicant to discriminate between disabled and able-bodied seniors. He indicated that those prohibitions were why the applicant believed the Code definition emphasized building design and provision of services to the elderly, rather than individualized abilities or disabilities as a condition for tenancy. He directed the Council to the applicant's materials, which covered these issues in exhaustive detail. • Martha McClennan, Executive Director, Northwest Housing Alternatives She indicated that Northwest Housing Alternatives was a non-profit organization formed in Clackamas County, which has provided affordable housing for 25 years to seniors, families, and the disabled, as well as providing em rg ncy shelter for homeless families. She mentioned that she participated on the Affordable Housing Task Force and in the 50+ dialogs in 2004. She said that they have been working specifically on Oakridge Park since 2006. City Council Special Meeting Minutes Page 6 of 25 March 10, 2009 She stated that throughout the project, their presentation about the character of the project, the services, the building design, and the types of tenants they expected to serve, has been consistent. She observed that during the first round through, the City staff, the DRC, and the City Council were in consensus that the project met the definition of congregate housing. The neighbors did not raise the issue in the first 18 months; they only brought it up in May of last year in their brief before LUBA. She stated that in its considerable investment of time, money, and opportunity in this project, Northwest Housing Alternatives has made a good faith effort to meet the needs of the Lake Oswego community for this type of housing. She said that they were not asking for special treatment, but rather they were asking for an interpretation of the Code that was consistent with the intent of the Code, with City policy, with the LUBA appeal, with federal law, and with the City's actions over the past two years. She observed that the gist of the issue was what congregate housing was, and whether the DRC interpreted the definition correctly. She noted that Oakridge Park was the first project in Lake Oswego to apply under this particular Code category after its adoption in 2002. She pointed out that the Code had a continuum of four different housing types, running from the most independent form of congregate housing to the most needy form of skilled nursing facilities. She cited the history of the Council's adoption of the new code as providing clues to understanding its intent. She noted that in the old definition of special purpose housing, it was clear that the City should treat senior housing differently from multi -family housing without regard to disabilities. She pointed out that congregate housing was the only one of the new definitions to use the word 'disability,' even though congregate housing was the housing type for the most able residents. She acknowledged that their research into the definition of disability, the data on disabilities, the aging process, and the nuances of the Fair Housing Act and the ADA generated so much information that one was tempted to throw it out. She recalled that the DRC mentioned that frustration. She held that the DRC then picked the simple path of requiring occupation of each unit by a person who proved that he/she was disabled because of age. She commented that that was one way to interpret the Code, but held that it also created problems. She acknowledged that that interpretation turned down their project. She contended that more importantly, it violated federal law and did not support the policy objectives of the Council in creating congregate housing. She argued that this interpretation tightened the definition of congregate housing so much that no congregate housing for seniors could be built in Lake Oswego. She asked the Council to look at the bigger picture. She mentioned the policy intent of the Council when it created congregate housing and senior housing. She referenced the Affordable Housing Task Force and the 50+ dialogs. She noted the volume of undisputed evidence about the prevalence of disabilities in seniors, and the specific design features and service plans for Oakridge Park. She urged the Council to be careful to make sure that its land use decisions were consistent with the principles and nuances of federal housing law. She argued that a simple way to honor these principles was the legitimate interpretation of the Code based on the prevalence of disabilities in seniors. She held that the Council could satisfy the LUBA remand and allow the building of congregate care housing for seniors, as outlined in the applicant's February 25 letter, by interpreting 'due to' to mean a causative element. She contended that the Council could find that the project met that standard based on the evidence, and that it met the standard for design and services. She said that if the Council was unable to make those findings, then they cautioned the Council to look at their request for reasonable accommodation. She stated their belief that it was imperative that the Council make a decision consistent with fair housing laws; reasonable accommodation would be a way to do that if the Council could not make the findings as suggested. She urged the Council to support congregate housing in the City and the Oakridge Park project. City Council Special Meeting Minutes Page 7 of 25 March 10, 2009 Councilor Hennagin commented that he understood Mr. Sullivan to be saying that the Fair Housing Act prohibited discriminating in favor of individuals with disabilities. He cited the ADA and the Oregon Fair Employment Practices Act, which required employers to discriminate in favor of individuals with disabilities to the extent of making reasonable accommodations for the disability where they could do so. He asked if he was saying that the Fair Housing Act would prohibit Northwest Housing Alternatives from limiting the residents to those with disabilities. Ms. McClennan observed that this was a nuanced and complicated issue. She explained that the City was allowed to have senior housing as an exception, but it could not add other criteria to that beyond age. One could not have senior housing plus disabilities. Once the City started adding other criteria, it no longer qualified under the exception for senior housing, and was actually discriminating based on familial status. She argued that when the DRC said that tenants had to be disabled, and that age must cause the disability, it added additional criteria, which the law did not allow under the senior housing exception. However, since the project would serve people with disabilities in general, adding the age plus disability factor in effectively discriminated against people with disabilities. She indicated to Councilor Hennagin that the HUD funding requirements were not the issue. The issue was that the Fair Housing Act did not allow adding another layer of additional eligibility criteria to the senior housing exception. She confirmed that this project was senior only housing. Ms. McClennan indicated to Councilor Olson that she had thought that the Avamere project was a continuing care retirement community. Ms. Andreades clarified that there were two Avamere projects: the Pearl Avamere on Carmen was built under special use housing prior to 2002, and the Overlook Avamere was built under congregate housing. The Overlook Avamere pre -dated the Oakridge Park project. Ms. Andreades indicated to Councilor Moncrieff that in reviewing the record, she did not find that disability had been an issue for the Avamere Overlook facility; that appeal came to Council on issues of external design and traffic. She confirmed that to her knowledge, the criteria for the residents at the Avamere congregate care facility was age alone. Mr. Powell discussed the issue of whether the City would be in violation of the Fair Housing Act and the ADA if the Council upheld the DRC's decision. He concurred that under those two acts, the City could have housing specifically for people with disabilities in general or with specific disabilities. He described the DRC's finding as reading LUBA literally, and concluding that this type of housing was for people with disabilities due to physical condition, due to mental condition, and due to aging. However, there was no evidence that there was a disability caused by aging. Apparently, everyone agreed on that statement. He pointed out that the dispute was whether 'due to' allowed a correlation as opposed to meaning 'caused by.' He pointed out that if the application were for senior housing only, which the City could permit, then the issue of disability would not arise. If the Council incorporated the DRC's decision, in which it said that there was no such thing as a disability caused directly by age, again the issue would not arise. However, if in a fantasy world, there really were such a thing as a separate disability caused directly by age, then the Council could permit housing solely for those with that disability, and ask for verification under the federal laws. He suggested that the Council first decide what the definition meant, and what kind of housing the members thought that the definition allowed and did not allow. He advised the Council that he did not see the DRC's finding as promoting illegal discrimination in the City's programs and services. He pointed out that congregate care was just one type of housing under the code, which the DRC finding limited to disability. However, one could build senior housing under a different code section, such as multi -family housing. He indicated that if the City required people with disabilities always to be segregated by not allowing integrated housing, then there would be a problem. He stated that he was not promoting City Council Special Meeting Minutes Page 8 of 25 March 10, 2009 a result with his comments, as he respected the opinion that upholding the DRC would mean that the City would be violating federal law. However, he did disagree with that opinion. Mr. Sullivan stated that they were taking the position that the City could not discriminate once it made the decision that this was senior housing for people with or without disabilities. Councilor Tierney asked, given that 'life function disability' was an undefined term, why the appellants defined it within the context of federal law. Ms. McClellan described the reasoning used by the appellant. LUBA said that they had to show a causative element. In looking for data about disabilities to show that causation, the appellant had to first decide what 'life function disability' meant. They noted in the City's legislative history that the Council adopted congregate housing in light of its concern about the ADA. Therefore, the appellants looked to the ADA definition, and then looked to data that approximated the ADA definition. She agreed that 'life function disability' was an undefined term. She commented that they could have decided that LUBA was wrong and focused on the design and services argument that "if you build it, they will come." However, disability was still a factor in that logic track because they needed to define who was 'they,' and what characteristics they would need to design the building to accommodate. Mr. Sullivan indicated to Councilor Hennagin that he disagreed with Mr. Powell. He held that the Council enacting an ordinance, which specifically allowed only residents 62 years or older and disabled, would violate the federal Fair Housing Act. Mr. Powell commented that he might agree on that point if the ordinance said disabled for whatever cause and senior, because that did not distinguish between a senior with a disability and the same disability with a non -senior. He emphasized that the DRC finding did not say that. The DRC found that the Code literally said that it must be a disability caused by age. It also found that no one has shown a direct causation. Because no such causation existed, the DRC concluded that this was limited to only people with disabilities in general until the Council changed the Code. THOSE IN FAVOR • Mary Diane Savage She mentioned that she has lived in the Waluga Neighborhood for 22 years, and in Lake Oswego for 30 years. She referenced her submittal of Exhibit G-172 to the DRC on January 12, 2009. She stated her belief that the Waluga Neighborhood Association did not represent all the individuals living within its boundaries. She cited her experience of taking a petition to 15 households and describing the senior housing project, after which 13 of those households signed the petition. She stated that people were generally unaware of the project but supportive of it once they were better informed. She argued that the City did not intend to discriminate against seniors, with or without disabilities, in using the language 'life function disabilities due to age.' She encouraged the Council to approve the project. • Myrna Cunningham, 50 North Shore Rd, #8 She mentioned that she had worked at Village Drug for 30 years. She described her current living situation as a senior with disabilities unable to work and living on Social Security. She referenced her letter, Exhibit G-161. She stated that she has been on the waiting list for the Oakridge Park apartments since September 2007. She contended that she represented many people in the room who needed this housing project to stay in Lake Oswego. She urged the Council to follow the staff recommendation, and to approve the project. City Council Special Meeting Minutes Page 9 of 25 March 10, 2009 • Rev. Libby Boatwright, Associate Pastor, Lake Grove Presbyterian Church, 4040 Sunset Drive She explained that her ministry's primary focus was on caring for the aged, sick, disabled, hospitalized, and disenfranchised homeless in the community. She mentioned the 300 volunteers at the church providing services for seniors. She stated that four years ago, she began praying about finding a solution for seniors forced to leave their family, friends, and community in Lake Oswego for less expensive living situations in other areas. She argued that this project was a way to stop the exodus of the seniors who built this city to what it was today. She mentioned that with the help of Northwest Housing Alternatives, they received one of only 41 grants in the nation to build a housing project for residents over 62 years old. She spoke of their work over the past three years to bring the project to fruition. Presiding Officer Johnson asked the audience to refrain from distracting conversations with staff. Mr. Powell suggested that if someone had a question, then he/she should pass a note to staff. He explained that people were trying to challenge the evidence and other items in the record. He indicated that Ms. Andreades was doing her best to check the record in response to those concerns. Presiding Officer Johnson concurred with Councilor Tierney's point that the issue on remand before the Council was a very narrow issue. She asked that participants direct their testimony solely to that issue. Ms. Andreades directed the Council to Exhibit D-7 in the packet, which listed several non -related issues that came up at the DRC remand hearing for use in evaluating requests. She noted that the general need for housing was a non -related issue. Rev. Boatwright indicated that she was addressing Councilor Tierney's comment about the services provided. She listed the various senior, low-income, and disabled services currently provided by Lake Grove Presbyterian Church. She confirmed to Councilor Tierney that all those services would be available to the Oakridge Park residents. • Virginia Lagow She said that at 82 years old, she was one of the many seniors in need of affordable senior housing. She referenced her previous support for building this kind of facility in Lake Oswego. She indicated that after reviewing all the materials at the original hearing, the DRC and senior planners found that this Northwest Housing project met all the criteria for affordable congregate senior housing. She contended that at the January 5, 2009, meeting, no one looked at what Northwest Housing had to say about congregate housing or how they met the stated criteria. She mentioned her shock at the quick denial of the application. She hoped that the Council would make a solid and well -thought out decision on this much-needed senior housing project in Lake Oswego. • Doug Brannock, 5189 Tree Street He said that he has lived in Lake Oswego for 37 years. He argued that it was obvious that age did relate to disabilities. He pointed out that 60 years ago, he could climb staircases two at a time with little effort, but now, due to his age, he could no longer do that. He noted that this was not a disability that prevented him from enjoying a happy lifestyle, but it was indicative that age related to increasing disabilities. • GI nn Chilcote, 3480 Upper Drive He stated that he has lived in Lake Oswego since 1964. He acknowledged that the project was a popular one in the community, but disagreed with those contending that the City officials were trying to find an exception to the City Code language in order to approve the project because it was a popular project. City Council Special Meeting Minutes Page 10 of 25 March 10, 2009 He argued that the due process and approval of this project over the past three years has confirmed that this was the right project at the right location. He also held that the City did not find an exception to the Code language in approving the project, but rather it affirmed the intent of the language to encourage this kind of affordable housing. He referenced the expert testimony with its extensive documentation as providing the proper means to address adequately the definition that LUBA remanded to the City for clarification. He held that the fundamental issue centered on three questions, all of which should be answered 'yes': was this the right thing to do for the community, did the project fall within the City Comprehensive Plan Goals and Guidelines promulgated for the community, and would the project meet the intent of the Code as written? • Diana W. Shavey She stated that she was a member of Lake Grove Presbyterian Church, and served as the Regional Director of Housing for the Pacific Northwest for the Department Housing from 1985 to 1998. She referenced her written testimony, Exhibit G-165. She rebutted opponent testimony asserting that the applicant could not legally prove that they would provide, manage, or arrange special services for the residents. She cited p. 4 of her testimony and the chart demonstrating how Northwest Housing intended to implement all the services defined in the Code as proof of the services to be provided to the facility. She described the internal design features that went beyond multi -family design features in creating a living environment suitable for people with disabilities. She referenced her testimony on January 12, during which she submitted Exhibit 5 of the original application for funding, which detailed the supportive services planned for the development required to receive government funding. She referenced p. 3 of her testimony discussing the federal definition of handicapped as meaning an impairment that 'may include a functional disability or frailty which was a normal consequence of the human aging process.' She asked the Council to find that there was a correlation between age and disability, and that the application's design features and services program met the City's standard for congregate housing. She urged the Council to grant the conditional use permit and clarify its original approval to reflect the City's historic and legislative intent. Ms. Shavey clarified to Councilor Hennagin that she found the federal definition of handicapped in the federal statute, "The Congregate Housing Services Program, 1978." She read the language of the statute as given on p. 3 of her written testimony, Exhibit G-165 (v.2, p. 643) [G-17, Council Packet]. She indicated to Councilor Moncrieff that the social services coordinator would not necessarily reside in the building. She explained that this person would make sure that the social and housing services provided were responsive to the requests of the residents throughout the life of the operation. • Ellen Johnson, Legal Aid Services of Oregon, Hillsboro. She noted that she testified at the January 5 hearing. She directed the Council's attention to the fair housing arguments from AARP. She stated that the applicant's testimony before the DRC showed that Northwest Housing sought to develop congregate housing for a population that was elderly, low income, and would have a substantial number of persons with disabilities in accordance with the City's regulations to provide for independent living. She argued that the DRC's interpretation of the congregate housing designation violated the Federal fair housing laws, in that it restricted this congregate senior housing to only those with disabilities due to age, instead of making it available to all seniors. She emphasized that the applicant has requested a waiver of a reasonable accommodation of the requirement of disability due to age because it was unlawful. City Council Special Meeting Minutes Page 11 of 25 March 10, 2009 She stated that this request placed no financial hardship on the City nor asked for a substantial alteration of the City zoning scheme in order to allow this housing to be built in accordance with the intent of the congregate housing ordinance. She reiterated that denial of the reasonable accommodation request would be a violation of the federal fair housing laws. She argued that the fact that the applicant could build a different type of housing on this location under the multi -family ordinance was not a sufficient reason to deny this request. She indicated to Councilor Hennagin that she has practiced law before LUBA. Councilor Hennagin asked to what extent was the Council bound to make its finding in accordance with LUBA's instructions in its opinion, or could the Council find that LUBA misinterpreted the ordinance and take a different tack. Ms. Johnson stated that the responsibility to interpret the City's ordinances fell first to the Council. She pointed out that the real issue was that the Council's interpretation had not been in front of LUBA, and that LUBA directed the Council to make a determination as to what the congregate housing ordinance meant, specifically whether 'due to' itself had a specific or general meaning. She pointed out that the LUBA decision did not mandate the Council to interpret the ordinance one way or the other, nor did it limit the Council to the two stated options of a direct linear relationship or a correlative relationship. She stated her opinion that the Council was free to do what it wished based upon its understanding of the intent of the ordinance. Councilor Hennagin referenced a well-known principle of legislative interpretation that when interpreting vague or ambiguous language, one looked to the legislative history to help interpret the language. He commented that the more he read the ordinance, the more confusing he found the language. He asked if the Council could look to the history of the prior Council actions and stated intent upon enacting the ordinance, or should they focus on this Council's interpretation of what the members thought the ordinance meant. Ms. Johnson commented that she did not think that the Council could ignore a clear statement of intent contained in the legislative history. She pointed out that if the intent contravened federal fair housing laws, then the Council could not rely upon the clear indication of intent. She stated that it was clear that the federal 1988 Fair Housing amendments and Title 2 of the American with Disabilities Act (ADA) applied to land use regulations, zoning, and ordinances. Councilor Tierney acknowledged that Ms. Johnson, as an expert having practiced before LUBA, would have to speculate to answer his question of why LUBA did not identify that the Code language violated federal law. Ms. Johnson said that not having been on the advocacy team prior to the remand, she did not know the answer. She indicated her suspicion that the issue of compliance with federal law was never argued before LUBA, and therefore, they never considered it. She mentioned that one of her concerns with the LUBA process in Oregon was the lack of people with expertise in the federal fair housing laws. Councilor Hennagin confirmed to Councilor Olson than when he used the term 'ordinance,' he was referring to LOC 50.020.005. e Rick Parfey, 45 Hillshire Drive He stated that he was addressing the internal design components suitable to meet the standards of congregate housing. He presented his qualifications as a 40 -year professional who specialized in designing housing for people with disabilities. He mentioned his service on boards and task forces of organizations focused on advocating for the disabled population. He stated that he found the building design provided residences for low-income people over 62 years of age, who because of their age faced a high probability of experiencing some level of loss of independence. He discussed a correlation between people with disabilities and people of low income. He argued that this housing project matched up well with this high need group. He concurred with Ms. Shavey that this project far exceeded the level of universal design features required by HUD 202. He mentioned that one of the common threads he has seen during his City Council Special Meeting Minutes Page 12 of 25 March 10, 2009 professional and advocacy work was that the disabled be able to live as independently as possible, given the limitations of their impairments. He stated that the Oakridge housing project did this well with a well -thought out design. He stated that his testimony was in rebuttal of Jeff Novak's testimony at the January 5 DRC meeting. e Bryna Bowman, 13980 Shireva Court Ms. Bowman reviewed her history as a Lake Oswego citizen. She spoke of the need for affordable housing in the community. She stated that in the past 15 years, her aging has shown up in her inability to walk or run, and her need for assistance in some things. She said that she looked forward to this affordable, independent senior housing facility, which was conveniently located to many services. e Dan Vizzini, 13830 Verte Court He recommended that the Council set aside the finding remanded by LUBA entirely and adopt new findings. He stated that the Council had the authority to do this, and support the original approval of this application by the DRC and the Council. He referenced his testimony at Exhibit G175. He stated that the original findings of the DRC in November 2007 were in error and inconsistent with the purpose and intent of the definition of congregate housing in the Code. He argued that the DRC finding focused on the users of the development, instead of on the development's design features, programs, and intended use. The Council then perpetuated the error in February 2008, and LUBA limited its October 2008 remand to the same erroneous finding. He suggested that instead of trying to repair a finding that was tangential to the development proposal, the Council concentrate on crafting findings that reflected the purpose and intent of the definition of congregate housing. He referenced his involvement in drafting the ordinance during his service on the Planning Commission. He stated that he could testify without equivocation that the Planning Commission spent very little time talking about who would use the housing. He explained that early on, the Commission's conversations implied that the issue of the users was more in the purview of state and federal regulators than in the City's purview. He said that the business of the City was to regulate land use development, and to shape development to be compatible with the values and goals of the City. He stated that the Planning Commission's deliberations focused on establishing clear differences between the various types of housing. The Commission's purpose and intent for the definition of congregate housing was to differentiate this type of housing on the continuum (of housing types) from multi -family housing on one end and the more intensive congregate housing involving medical services on the other end. He explained that they had not wanted to create one overarching definition of congregate housing that would create intrusive activities in neighborhoods 24 hours a day. He emphasized that this section of the Code attempted to shape the character of the development by requiring certain characteristics that would serve a certain population, thus differentiating it from other kinds of housing. He argued that where things went wrong was when the earlier findings focused on the definition of disability and on its connection to age, instead of focusing on the design elements, the functions, the programs, and the uses placed in these buildings. He stated that the definition of congregate housing did not say that the resulting development must serve persons with life function disabilities; it merely said that the building had to be designed to serve them. He pointed out that nowhere in the Development Code did the City regulate users; the City only regulated uses. He gave an example of setting the building and parking parameters for a store at a certain location but not requiring that only a certain population could use the store. He argued that the same was tru for housing: the Cod said what the building had to support and left it to others (federal and state governments) to set the regulations about who used the building. City Council Special Meeting Minutes Page 13 of 25 March 10, 2009 He directed the Councilors to his fellow Planning Commissioners at the time and to the record in order to verify the lack of discussion regarding users, and that the focus of the discussion had been on the physical parameters of the building. He indicated that he had a draft finding available for the Council's use. Councilor Tierney recalled that the issue at the DRC on the original approval was the relationship between congregate housing and parking. Mr. Vizzini held that the Council did not have to deal with that issue, as LUBA remanded the case solely on the clause within the definition dealing with the relationship between age and disability. The Council and/or LUBA approved all the other development standards. He reiterated that the intent of the Code was to talk about how the building would be built and used, and not who would use it. Councilor Tierney commented that overcoming the words in the Code regarding the relationship to a user remained a challenge for him. Mr. Vizzini explained that those words were there to indicate that the building would have certain characteristics intended to serve that population. He argued that all the City intended to do in its Development Code was to shape the development, to prescribe the use of the building, and to deal with the physical space and the relationship of the physical building to its neighboring area; the users were subject to application and selection criteria set by other bodies than the City. Presiding Officer Johnson recessed the meeting at 8:46 p.m. for a break. She reconvened the meeting at 8:57 p.m. THOSE IN OPPOSITION • Cindy Maddox, Waluga Neighborhood Association Vice Chair She stated that in making its request that the Council uphold the DRC decision to deny the application, the Association had the support of the majority of Association members, the surrounding neighborhoods of Lake Grove and Lake Forest, as well as the majority of neighborhood associations within the city as represented by LONAC. She contended that LUBA's direction clearly indicated that in order to meet the Lake Oswego Code requirements for this conditional use, age must cause the life functioning disability, because the Code required that the disability be due to age. (Exhibits F14, F15) She stated that LUBA agreed with the Association that eliminating the need for any demonstration of an actual life function disability or causative relationship between age and the purported disability was contrary to the express language of the Lake Oswego Code, which required a causative element. She argued that this application has never been about housing for those with life function disabilities, but rather it was about housing for age and income -restricted persons. She held that the applicant's statement that it did not want to require residents to prove their disability as a condition of tenancy was contrary to Code. Therefore, the application did not meet the express language of LOC 50.20.005. She contended that staff erred in recommending that causation could be proved by correlation. She argued that LUBA required a causative relationship and not a correlation. She stated that the Association provided significant testimony and evidence supporting the DRC's finding and conclusion that neither side provided data or studies proving a causation of age and disability. She referenced the evidence provided by the Association showing that the applicant could ask for proof of disability as a requirement for tenancy, and that doing so was the standard practice for insuring that the housing designed specifically for those with disabilities went to people with disabilities (Exhibit F21, p.F129, p. F52). She argued that since the City Code allowed multi -family residential housing for seniors and for low-income people, the applicant did not need an accommodation to provide the type of housing they were proposing. She contended that because the applicant wanted to develop in an area where the residential housing was more restrictive, they must prove their tenants disabled at the time of tenancy. City Council Special Meeting Minutes Page 14 of 25 March 10, 2009 She argued that LUBA did not say that occupants could become disabled after moving in, but rather it stated that they needed to prove their disability due to age at the time of qualifying for tenancy. She contended that the applicant argued that because people were more likely to become disabled as they aged, an applicant should therefore be considered disabled under the Code, whether they were actually disabled or not. She conceded that that was not contrary to LUBA's ruling, but argued that it still did not comply with LOC 50.020.005 because the applicant did not show that the tenant had a disability due to age, as required. She questioned at what age did disabilities occur. She cited the Association's evidence (Exhibit G-219) showing that the preponderance of the age relationship, using the accepted ADA interpretation, did not occur until people were well into their 80s. She acknowledged the need for this type of housing. She reiterated the Association's position that unless the use was limited to persons with disabilities, the building's mass, bulk, scale, and lack of parking were not allowed in the zone per the express Code language. She contended that the applicant could build this project in the existing zone without a conditional use permit. She indicated that the Association was concerned when the City did not apply the laws consistently. She said that if the Council determined that the community needed special conditional use for low-income senior residential developments in general commercial zones, then the Council needed to insure that it created and legislated such conditions before allowing them. She contended that the Council should uphold the DRC findings, as the development did not meet the code. She stated that she would cede her remaining time to anyone else. Councilor Hennagin asked Ms. Maddox if she was saying that this development as proposed violated other provisions related to congregate care, separate from the qualifications of the residents. Ms. Maddox indicated that she was not. She argued that this development could be built in other places in the city under the correct zoning, but the applicant needed a conditional use permit to use this particular property for a building of this size and mass. Ms. Andreades clarified that the applicant needed a conditional use permit because the use was a conditional use in the zone, and not because of the size of the lot. Councilor Tierney asked if the Association believed that studies could be produced to show a causative relationship between age and life function disability. Ms. Maddox said that that was not the Association's call. She stated that the Code said that every tenant needed to show a life function disability. Councilor Tierney referenced the LUBA language, which included 'or a causative relationship between age and the purported disability.' He asked whether the 'or' allowed a second avenue to show a relationship. Ms. Maddox said that it was up to the Council to interpret what LUBA said, and to interpret the Code. She held that the Code was specific, and that the applicant's proposal did not match LOC 50.020.005 as currently written. Councilor Olson asked where in the definition in LOC 50.020.005 it said that every single person must be disabled, as Ms. Maddox had argued earlier. She noted that Ms. Maddox was interpreting 'those that have life function disabilities" as meaning 100%. • Jim Bolland, 804 Fifth Street, LONAC representative He noted that LONAC voted to support the Westside neighborhoods in their opposition to this project. He asked a legal process question. He mentioned that he was on record that he believed that the Council allowed testimony and discussion far beyond the strict nature of the hearing, such as legal issues and parking issues. He stated for the record that the Waluga Neighborhood Association tried to introduce evidence germane to parking issues and the City denied their request. He City Council Special Meeting Minutes Page 15 of 25 March 10, 2009 argued that since the Council has opened up the hearing, it should allow the Association to introduce that evidence. Mr. Powell stated that the City did not have an 'open it up' rule. He explained that it was almost inevitable that irrelevant testimony would slip in, and that it was up to the Council to disregard any non -relevant testimony. That did not mean that the application hearing restarted. He advised the Council not to hear parking issues and to encourage people to stick to the issue during their testimony. He encouraged people, during their introductory comments, not to bring up issues not germane to the topic, such as parking or external design. Mr. Bolland reiterated his belief for the record that the Council opened up the hearing, in case someone wanted to appeal based on that contention. Councilor Tierney concurred with Mr. Powell that the Council has not opened up the hearing; the Council knew what the specific issue was and would disregard anything not related to that. Mr. Bolland commented that after hearing testimony from the appellants and supporters, he was not certain that he attended the same DRC appeal hearing. He described the Council has having a difficult task ahead of it in trying to resolve this no win situation. He argued that this was not about denying a needed type of housing but rather it was about what the Lake Oswego Code said and how staff interpreted that Code. He contended that this situation began with a misinterpretation of the definition of congregate housing. He argued that the staff had an inherent bias to continue that misinterpretation because it made the original misinterpretation. He held that this was a senior housing project and not a congregate care housing project by the Code definition. He mentioned the conversation at the DRC regarding the fair housing issues. He noted that one of the Commissioners, Robert Needham (an attorney), did not agree with the appellant's interpretation of the fair housing laws. He noted that the DRC did not choose to not interpret the ordinance and leave it to the Council to interpret it; rather they found that the definition was clear and that the applicant did not meet the definition. He indicated that the Commission said that if the Council did not like the ordinance as written, then it should change the ordinance. He argued that their 6 to 1 vote indicated that they thought the ordinance and the definition were very clear. He held that the issue boiled down to the definition. He disagreed that there were several different ways to look at the definition. He referenced Councilor Hennagin's question to Ms. Johnson, in stating that the Council could not overrule LUBA. He mentioned that the courts could overrule LUBA on an appeal. He read the LUBA statement: "Eliminating the need for a demonstration of an actual life function disability, or a causative relationship between age and the purported disability, is contrary to the express language of LOC 50.020.005, which requires a causative element." He argued that both LUBA and the DRC said that none of the testimony ever established a causative element. He discussed 'causative' and 'correlation.' He gave an example of having arthritis in his feet. He acknowledged that one could make a correlation that he had arthritis because of his age, but the fact was that he broke his foot in four places when he was younger, and the doctor identified that as the cause of his arthritis. He argued that LUBA clearly saw that it was not possible to make an argument that everybody over 62 years old was disabled because of age. He concurred with the DRC that the definition was not unclear, and that if it was not what the Council intended, then the Council needed to fix the Code. He asked the Council to uphold the DRC decision. Speaking for himself personally, he commented that situations like this, no matter which side won, were 'an everybody loses situation' because of the divisiveness it created in the community. He said that his expectation, and that of most residents in the community, was that they had a right to know by looking at the City Code what a developer could build in the neighborhoods. He City Council Special Meeting Minutes Page 16 of 25 March 10, 2009 contended that these kinds of interpretations led to nothing but angst in the community. He spoke to fixing the codes if they were unclear. Councilor Tierney asked where in the record he could find the opposition by the Westside neighborhoods. Mr. Bolland indicated that he did not know where in the record the documentation of the Westside neighborhoods testifying in opposition at the DRC hearing was located Councilor Hennagin said that he understood Mr. Bolland to be saying that 35 years of walking on a previously existing injured foot did not contribute to the pain he experienced presently. Mr. Bolland conceded that the pain has gotten worse as he aged, but he stated that a doctor would not say that the pain/disability was due to age, but rather that it was due to the injury. Councilor Hennagin asked if the City had a Code provision that specifically provided for senior housing. Mr. Bolland said that senior housing fit into multi -family housing. Ms. Andreades pointed out that multi -family housing did not provide any services. She said that her reading of the record in the past was that congregate housing was seen as multi -family housing but with the services that multi -family housing alone did not provide. Mr. Powell indicated that there was not a specific category in the code for senior housing that was not congregate care. He noted several questions. Could one put senior housing under the standards for multi -family housing? Was the intent of the Council in adopting the congregate housing ordinance to also include senior housing? If so, was LUBA saying that the Council had to do something with the definition 'due to' that might change that. Mr. Bolland pointed out that all other senior housing projects in town either had dining rooms or provided food, which this project did not. Ms. Andreades confirmed to Councilor Hennagin that there was nothing in the Code that would prohibit multi -family housing from providing these services. Mr. Powell noted that the zone on this site would require retail on the first floor for multi- family housing and different parking standards. Councilor Tierney recalled that in answer to his earlier question, the Presbyterian Church representative specifically stated that meals would be provided at the facility. Mr. Bolland gave his understanding that the applicant said that meals would be provided by the Lake Oswego Meals Network. He pointed out that his testimony focused on the definition issue, and not the support services provided. Councilor Tierney concurred that the crux of LUBA's opinion was the definition, but he pointed out that there was also testimony this evening that the project met the standards associated with the congregate housing land use in terms of its physical attributes and services provided. Mr. Bolland commented that the DRC voted 6 to 1 that it did not agree. Pr siding Officer Johnson asked if Mr. Bolland was aware of any existing laws in the Code where the City legislated the users of the land. Mr. Bolland indicated that he was not aware of any. Councilor Moncrieff asked Mr. Powell if it was legal for the City's land use code to specify who may use facilities. Mr. Powell said that in general, yes, it was legal. He noted that the Code regulated users and design standards primarily through the zoning. If someone used land zoned for a restaurant for something other than a restaurant, then he/she violated the Code. Mr. Powell indicated to Presiding Officer Johnson that if users did something different from residing in a residential zone, then that was an illegal use. He pointed out that congregate housing was a subset of residential use. He explained that one level of interpretation of the definition was whether the Council dictated who could use the building. Did the City allow congregate care housing to support those that had life function disabilities, even if it was not used by those for whom it was built? City Council Special Meeting Minutes Page 17 of 25 March 10, 2009 • John Pullen, 18 Britain Court He stated that he supported low cost housing for seniors in Lake Oswego, but he also supported the neighborhood associations and LONAC, which have opposed this Northwest Alternatives application. He spoke of the importance of the Council abiding by the Community Development Code as presently written. He cited the DRC's 6 to 1 vote to deny the application as evidence of its intent to conform to the Code. He recalled that the DRC cited the volume of material as its reason to postpone its hearing for two weeks. He mentioned that Commissioner Needham, an attorney, helped the Commission come to a conclusion. He pointed out that after separating out the chaff, the Commission did not agree with the staff opinion. He commented that this was the first application to go to LUBA from Lake Oswego in a long time. He recalled that the City Attorney had advised the Council to wait on the LUBA remand to see if Northwest Housing Alternatives would appeal the LUBA decision; when it did not do so, the Council remanded the remand to the DRC. He strongly emphasized that the applicant for a development permit was required to bear the burden of proof. He stated his agreement with the DRC conclusion that the applicant did not meet the requirements for congregate housing, per the LUBA remand, and that it could not make the facility comply with the application criteria of the applicable conditions. • John Bowles, 15315 Quarry Road He discussed procedural irregularities for inclusion in the record. He stated that in previous testimony opportunities, when the project proponent objected to opponent testimony, the City Attorney stopped the testimony to rule on whether or not to proceed. He stated that when the opponents attempted to object to the appellant's testimony, they were required to submit a note; at no time was testimony stopped nor a ruling on relevancy made. He held that there has been an issue of disparity in treatment of the proponents and the opponents throughout the entire process. He argued that the proponent's position that one would undoubtedly incur a disability with age was pure speculation; it was not a certainty. He stated that the requirements to live in the facility were being 62 years of age or older, and having a disability. He said that since he would have to demonstrate that he was 62 years or older in order to live in the facility, he should also have to demonstrate that he had a disability. He reiterated that it was pure speculation to conclude that he would incur a disability at some time. He commented that the issue of life function disability only came up in the context of receiving a conditional use permit and the parking exception. He said that the building only had a select number of units designed as handicapped. He held that the applicant's testimony that it could convert other units to a handicapped accessible design was a conversion that a developer could do on any new development. He contended that that was an inconsistency, as a project designed from its inception to accommodate people with disabilities, would have handicapped accessible features incorporated into the design. He argued that the reason the applicants sought to label the project as a disability project was their desire for a conditional use permit in order to reduce the parking requirement. Presiding Officer Johnson cautioned Mr. Bowles not to talk about the parking issue. Councilor Tierney pointed out that the language in the Code was 'life function disability,' and not 'handicapped.' Mr. Bowles stated that there were certain design components that would speak to whether a facility was congregate care housing, such as a communal meeting/meals space or individual living space for independent living. He argued that this project did not meet the definition of congregate care housing; the applicants called it congregate care housing because they wanted the conditional use permit. City Council Special Meeting Minutes Page 18 of 25 March 10, 2009 Mr. Bowles commented that Dan Vizzini, who spoke of his involvement in writing the statute, was a proponent of the project, which made his testimony biased. He held that Mr. Vizzini did not present any evidence demonstrating what the City's legislative intent was in drafting the statute. Councilor Hennagin pointed out that Mr. Vizzini was a first hand witness testifying to what he witnessed. Mr. Bowles agreed that Mr. Vizzini could testify with respect to his involvement and his understanding of the intent. However, he reiterated that Mr. Vizzini presented no documented evidence showing what the legislative intent was, and he believed that Mr. Vizzini's testimony was subject to bias. Councilor Olson noted that Mr. Vizzini had referenced the Planning Commission meeting minutes. She pointed out that if Mr. Vizzini was biased because he was a proponent, then Mr. Bowles was equally biased as an opponent. She held that the comment was not relevant; the Council should not consider it. • Carolyn Krebs, 16925 Denny Court She mentioned that she had written testimony to submit for the record. She reminded Councilor Tierney that he sat as Development Review Commission Chair for the original hearings, at which the Lake Forest Neighborhood Association testified in opposition to the application. Councilor Tierney indicated that he could not find testimony from Lake Forest in the record on the remand. Ms. Krebs concurred with Mr. Pullen that it was the applicant's job to provide the burden of proof, and not the opponents' job. She held that asking Ms. Maddox to provide evidence of age and disability was inconsistent, given her stand on the application. She referenced Mr. Vizzini's testimony. She noted that the conditional use permit in this zone recognized how the users access the building. She argued that it would be wrong not to consider that issue now, as suggested by Mr. Vizzini. She referenced a comment she heard Mr. Powell making earlier in the hearing, alluding to the fact that there was no way to show that age itself caused a life function disability. She quoted from the staff report, "Staff notes that the DRC did not make a finding that it would not be possible for any applicant to show that age itself could cause a life function disability, just that Northwest Housing Alternatives had not." She emphasized that the issue was, not that the causation could not be proven, but that the applicant has not proven it by the evidence submitted so far. She read her written testimony. She asked the Council to affirm the DRC decision to deny the application. She discussed the correlation versus causation issue, arguing that they were not the same thing. She recounted an anecdote from her family of the youngest member (age 17) having a disability due to a medical condition (Type 1 diabetes) and to a mental condition. She held that one day, if it became appropriate for him to live in congregate housing, it would be appropriate for him to verify that he had these disabilities. She said that another family member in her mid-70s lived an independent and active lifestyle, and would be indignant to hear that she had a life function disability due to her age. She contended that the evidence provided by Northwest Housing Alternatives showing a correlation between age and disability would not convince that family member of such a correlation. She discussed the issue raised by the appellant that the DRC finding violated the Fair Housing Act and the ADA by creating a class of housing that segregated persons with disabilities from non - disabled persons. She contended that those living at Oakridge Park were making a choice to live in an environment with similarly challenged people. She argued that this choice, as written in the Lake Oswego Code, was not a violation of the law. She held that the Council should maintain it. She said that the appellant and City staff who have worked on this project from its inception needed to recognize that they erred in recommending a congregate housing conditional use for the project. She stated that LUBA found that the project did not meet the Code definition for congregate housing. She argued that it was senior only housing, and not housing for persons with life function disabilities due to age, mental or physical conditions. City Council Special Meeting Minutes Page 19 of 25 March 10, 2009 e Cheryl Uchida, 15190 Quarry Road She referenced her written testimony submitted earlier. She commented that from the beginning of this development proposal, she has been amazed at the argument that in the definition of congregate housing, the Lake Oswego Code found that people 62 years and older were disabled, and that age caused the disability. She stated that she met the age criterion and did not have any life function disabilities. She commented that this divisive issue has fractured the Waluga Neighborhood the same as it did the Palisades Neighborhood. She speculated that many found the Lake Oswego Community Development Code as confusing and difficult to understand as she has in following issues that have come up in the Waluga Neighborhood. She mentioned the Planning Commission's current consideration of a needed rewrite of LOC 50 to make it clear and explicit. She disagreed with a neighbor's testimony that denying approval of Oakridge Park based on the current definition of congregate housing meant that no low income senior housing could be built in Lake Oswego. She held that a denial did not constitute a ban of the housing, but rather it followed the explicit language of the Code. She commented that when Northwest Housing Alternatives met with the Waluga Neighborhood Association and City staff to discuss solving parking and building height issues, they showed no willingness to alter their development plans for Oakridge Park. She mentioned their having to stick to the HUD requirements for funding. She acknowledged that this was a political issue in the community. She urged the Council not to let politics trump the Lake Oswego Code. She argued that if the Council ruled against the DRC decision to deny the application, it ran the risk of approving a non -conforming facility. She cautioned the Council to be careful of the unintended consequences of future housing of this kind in the community. She mentioned that the Avamere at Stafford facility was a mixed use of congregate housing and residential care. She wondered whether the Code was not looked at as closely for that project as it has been for this one, considering that Avamere was mostly independent living units built as congregate housing. She referenced her work with Meals on Wheels and Loaves & Fishes. She said that Northwest Housing approached these groups, as well as the Presbyterian Church, and never mentioned that their application was for life function disabled folks; they only spoke of independent, low-income seniors. She reiterated her belief that the City was in error in interpreting its own Code. She suggested that the Community Development Director recommended that the only way the applicant could build the facility was if the application fell under the congregate housing definition. That would allow them to build on a general commercial site under a conditional use permit e Gail Stuart -Bowles, 315 Quarry Road She referenced an earlier question regarding whether a 100% tenancy of disabled persons. She held that it was common sense that the individual qualifying as a tenant would need to have some form of disability, but his/her spouse would not. She argued that the phrase 'those who have disabilities' meant 100% of the tenants had disabilities. She referenced Mr. Sullivan's comment that the Council could interpret the Code however it wished, and that LUBA would uphold that interpretation. She argued that that was what happened the last time, and LUBA did not hold up the Council's interpretation. She reminded Councilor Tierney that she had talked with him personally when he was the DRC Chair regarding the Waluga Neighborhood's objection to the conditional use permit request for this project from its onset. She held that the City shut down the neighbors at every turn and dismissed their objections, with staff telling them that they had to abide by the Code. She questioned the City Council Special Meeting Minutes Page 20 of 25 March 10, 2009 interest in amending the Code now that Code was no longer convenient. She argued that if it applied one way, then it applied the other way also. She stated her objection to the Council allowing Mr. Vizzini to give testimony that had not been received before. She described him as giving his professional testimony as a city planner and a proponent. She acknowledged that he had firsthand knowledge regarding how the Code came about, referencing his testimony before the previous Council hearing. She stated her objection to a Council member asking one of the proponents for a legal opinion on the LUBA ruling. She held that the Council should ask the City Attorney such questions. She objected to that testimony on the basis that it was biased. She read from her written testimony, recounting her passionate involvement in objecting to the accommodations afforded to Northwest Housing Alternatives and Oakridge Park with respect to its conditional use permit request. She emphasized that Oakridge Park was an independent living, low-income, senior housing project, as described by Ms. McClennan at the first appeal hearing, without reference to life function disabilities. She held that at the appeal, Councilor Groznik tried to assist the appellant by suggesting that LOC 50.02.005 could be interpreted differently, given the phrase due to, age, mental, or physical disability. She recalled that Mr. Vizzini had said that he did not remember as clearly as Councilor Groznik, and that he believed that the Planning Commission had written the code language in the context of federal standards and statutes. She mentioned attending the LUBA hearing, at which LUBA asked Deputy City Attorney Evan Boone and Northwest Housing attorney Carrie Richter if the only disability required was being age 62. She said that both attorneys admitted that that was the only disability requirement, as well as meeting the income requirements. She said that there was laughter on the Board at the preposterousness of the requirement. She reiterated that the LUBA finding supported the DRC finding that age had to cause a life function disability, and that the Lake Oswego Code required disability due to age. She stated that what was most objectionable to her was the bending of the Code in a manner not available to all Lake Oswego residents. She argued that the City had to apply the Code uniformly and fairly to all citizens in Lake Oswego. She contended that the City officials could not play fast and loose with the law to suit the need, no matter how worthy the cause. She mentioned the attacks on the Waluga Neighborhood Association and herself in saying that they did not win the appeal. She pointed out that the City had to repay their filing fee. She argued that LUBA would see another appeal as a frivolous suit because the community has already discussed this issue two times over. She held that LUBA would rule the same way on another appeal. She expressed her doubts about the fairness of this appeal hearing, given that the Mayor has been one of the project's most outspoken proponents, and that the Chair of the DRC that heard the original case was now a City Councilor. She said that she was not saying that Councilor Tierney was biased, but she did believe that there were interests. She commented that it was a sad day when citizens were forced to demand that the City abide by its own laws, and to spend thousands of their own dollars appealing to LUBA. She stated that if the Council did not uphold the DRC and the City's own laws, the neighbors would take this issue back to LUBA. Councilor Olson asked why Ms. Stuart -Bowles brought up the Mayor when he had recused himself. Ms. Stuart -Bowles said that while she was accusing no one of wrongdoing, the reality was that conversations occurred in backrooms, and that people who were passionate and supportive of things had ways of communicating that were not illegal or intentional. She indicated that she thought this was a great project, just not how it was being built on this lot. City Council Special Meeting Minutes Page 21 of 25 March 10, 2009 Councilor Hennagin clarified that people who qualified as experts could give opinions as admissible evidence, and therefore, he did not think it was inappropriate to ask them their opinions in this situation. He agreed that everyone in the city deserved equal treatment before the law. He held that the Council's first obligation was to interpret the law in the way it was intended or worded, and to make sure that everyone was treated as fairly as possible. Councilor Tierney asked Mr. Powell if Mr. Vizzini's testimony was outside the bounds of this hearing. Mr. Powell indicated that there was testimony in the record regarding the history and intent behind this Code provision, including fitting the prior definitions of long-term care housing into usable categories that fit the current standards (including federal law). He mentioned testimony in the record about the intent at that time not to tie these senior housing designations to disabilities. He said that while he could not say that every word that Mr. Vizzini said was in the record, the general gist of his remarks was in the record. Ms. Stuart -Bowles commented that she was not objecting to his testimony, but rather to his introducing something new that he has come up with in the last few weeks, a way to re -interpret the Code to give the Council an out -clause. She held that it was wrong to seek to re -interpret the Code, as it was clear. It was either correct or not correct; if it was not correct, then the City needed to change the Code and apply it correctly. Mr. Powell clarified to Councilor Tierney that a recommendation on how the Council should decide based on the evidence in the record did not constitute new evidence. He indicated that the record showed that the issue related to the recommendation (that the definition spoke only to the design and services of the structure itself, and not to occupancy) was throughout the record as suggestions. He stated that someone offering findings was argument based upon the issues already before the DRC, and not new evidence. Mr. Powell indicated to Councilor Hennagin that this Council could conclude that the prior Council misconstrued the ordinance in its findings, as Mr. Vizzini has suggested. He explained that LUBA telling the Council that it did not consider 'due to,' and that it needed to give effect to those words, effectively altered what the prior Council's intent was. He confirmed that the Council could interpret its own ordinances and code, but noted that there were limitations on doing so, such as not violating the express language of the Code. He noted that LUBA said that the Council's interpretation violated the express language of the Code because it did not include 'due to.' He said that he thought Mr. Vizzini's comments were not coming from this perspective of violating the express language of the Code but rather that the Council intended those words to apply only to the building itself. He held that Mr. Vizzini was saying that the language had nothing to do with allowing senior housing, and that the City made a mistake in attempting to apply it to senior housing. He pointed out that the opponents agreed that the language did not apply to senior housing, but they argued that it applied to disability, and that the staff led the Council astray in applying the language to senior housing. Pr siding Officer Johnson noted for the record that Mr. Vizzini was not a Lake Oswego City planner. REBUTTAL Ms. McClennan commented that while the opponents were claiming that they believed that this kind of housing was important and valuable in the community, they have opposed it from the first day for a variety of reasons, coming up with a new reason at each turn. She said that the opponents were suggesting that LUBA said that there was only one way to interpret City Code, and that was that 'due to' meant 'cause,' specifically 'caused by age.' She described the opponents as then pointing to the record where experts testified that age did not cause disability but rather medical conditions, illnesses, or injuries caused disabilities. She noted the contention that LUBA said that a resident must have a disability caused by age, thus City Council Special Meeting Minutes Page 22 of 25 March 10, 2009 disqualifying this project and stopping its construction. She mentioned their suggestion that the City rewrite its Code and try again. She recalled a comment made by an opponent that the citizens had a right to predictability in the Code. She argued that the developers also had a right to predictability in the Code. She agreed that the Code language was complicated, unclear, and difficult to understand. She argued that age was in the definition because the Code allowed for senior congregate housing. She contended that LUBA provided guideposts on how to find an interpretation to allow senior congregate housing. Mr. Sullivan pointed out that LUBA remanded on the findings made by the City, and not on findings that it could have made. He stated that LUBA did not exhaust the universe of possibilities. He argued that LUBA's dicta did not bind the Council. He held that LUBA would uphold the Council's interpretation, unless it was inconsistent with the express language of the Code, inconsistent with its underlying purpose, or contrary to a State statute, goal, or rule. He discussed three ways that the Council could approve the application. If the Council believed that there was a causative relationship between age and mental and physical disability, it could interpret the facility design as supporting independent lifestyles for those who had life function disabilities due to age, medical, or mental conditions. He referenced the argument that the threshold was 100% disabled tenants. He asked where in the Code provision was the requirement that either everyone had to be disabled. He said that the second way was the Council interpreting its ordinance to stress the antecedents to the `due to' clause. These units were self-contained apartments with cooking facilities, which supported independent lifestyles for those with life function disabilities. He argued that nowhere did the definition require that each tenant be disabled. He indicated that the third way was, if the Council felt that the DRC interpretation was the only valid interpretation of the Code, then it could avoid conflict with the Fair Housing Act and the ADA by granting approval through a reasonable accommodation to allow the use to accommodate seniors. Councilor Hennagin asked for further clarification on Option #3. Mr. Sullivan argued that concluding that the DRC's interpretation was the only valid interpretation meant that no one could put a senior housing facility at this location. Therefore, the only way to accommodate seniors was to make a reasonable accommodation to allow the facility. Ms. Johnson reiterated that this was not simply senior housing, but it was low-income senior housing. She stated that they knew statistically that this population contained a significant majority of persons with disabilities. Therefore, this was housing for people with disabilities, whether they described it as congregate care housing or as something else. She argued that if the Council denied the application based upon the language in the Code, then it was denying housing for people with disabilities. She stated that if the City based a denial on something that violated the Fair Housing Act, then the appellants were asking for a reasonable accommodation that would allow building the housing. She read a legal precedent (allowed by Mr. Powell), which discussed the basic purpose of zoning as bringing together complementary land uses (not users). If a proposed use was similar to the surrounding uses expressly permitted by the zoning code, it would be more difficult to show that a waiver of the rule would cause fundamental alteration of the zoning scheme. She explained that the accommodation in this situation was to allow building the housing, which would house people with disabilities, and a senior population. She argued that this met the intent and purpose of the definition of the congregate housing code, in that it provided independent living for people with disabilities. She contended that a 100% tenancy by disabled individuals would require a violation of the Fair Housing Act, which was why a reasonable accommodation was required. City Council Special Meeting Minutes Page 23 of 25 March 10, 2009 Councilor H nnagin pointed out that in order to accept that thesis, the Council would have to accept the expert testimony that 73% of people over 62 had some disability. Ms. Johnson stated that the Council would have to agree that this proposed housing represented housing opportunities for people with disabilities. She commented that she did not think that the argument against accommodation was strong, if one looked at the numbers: 64% (instead of 73%) still represented a substantial proportion of housing for people with disabilities. Ms. Johnson observed that if the Council did not believe that the documentary evidence submitted by the applicant was credible, then that was a different question. She pointed out that no one has ever said that the evidence was not credible, but rather the arguments have focused on the definition of disability. Mr. Sullivan indicated to Councilor Olson that the applicant brought up the Fair Housing Act, the ADA, and the disabled definitions throughout the LUBA proceedings, from the very beginning. Ms. Johnson indicated to Presiding Officer Johnson that reasonable accommodation was still applicable if the Council did not have the applicant prove that people had disabilities. She reviewed the argument. The Council could assume that the proposed housing would house people with disabilities. She said that it was commonly accepted within the realm of land use that if a developer proposed building housing for disabilities, then the City could not require proof of an applicant that the tenants would actually be disabled. Since the housing was not yet built, it was all speculation. Ms. Johnson said that the courts have allowed a city to consider other factors, such as the applicant's mission statement, whether the applicant operated housing licensed by the State to serve people with disabilities, and whether the population that the applicant served by virtue of its mission contained a significant population of people with disabilities. Based upon those factors, a city could justifiably assume that the proposed housing would in fact provide housing opportunities for people with disabilities. She stated that the Council did not need proof today that the housing would have 100% people with disabilities; all it needed was evidence that a substantial proportion would provide housing opportunities. COUNCIL DISCUSSION Councilor Tierney moved to continue the hearing to March 24, 2009, for the deliberations. One of the opponents asked to keep the record open for the next seven days for additional testimony. Mr. Powell explained that the law required that for the initial evidentiary hearing on a permit but not for an appeal hearing. However, the Council had the discretion to grant the request. Mr. Powell advised the Council that while the 90 -day time limit for LUBA remands did not carry the same enforcement urgency as the 120 -day rule, it did need to move promptly on making its decision. Councilor Tierney moved to continue the deliberations to March 24, 2009, and to keep the record open for additional written argument from all parties for five days. Mr. Sullivan commented that while he preferred the Council to go forward on the existing record, if it did decide to leave the record open for argument, state law gave the appellants a seven day period to do the final written argument rebutting the additional written testimony. Councilor Tierney moved to leave the record open for written argument for five days, and to allow the applicant to rebut within seven days. Councilor Olson seconded the motion. A voice vote was taken, and the motionap ssed with Presiding Officer Johnson, Councilors Olson, and Tierney voting `aye.' Councilors Hennagin and Moncrieff voted 'no.' (3-2) Councilor Tierney moved to continue the hearing for deliberations to March 24, 2009. Councilor Olson seconded the motion. A voice vote was taken, and the motion passed with Councilor H nnagin, Moncri ff, OI on, Ti rn y, and John on voting `ay .' (5-0) City Council Special Meeting Minutes Page 24 of 25 March 10, 2009 4. ADJOURNMENT Presiding Officer Johnson adjourned the meeting at 10:39 p.m. Respectfully submitted, Robyn CMristie City Recorder APPROVED BY THE CITY COUNCIL ON May 19, 2009 Jack D. Hoff,4an, City Council Special Meeting Minutes Page 25 of 25 March 10, 2009