MINUTES WASHINGTON COUNTY BOARD OF COMMISSIONERS JANUARY 23, 2018

Transcription

1 MINUTES WASHINGTON COUNTY BOARD OF COMMISSIONERS JANUARY 23, 2018 CONVENED: 6:32 p.m. BOARD OF COMMISSIONERS: Chair Andy Duyck Vice Chair Bob Terry Commissioner Dick Schouten Commissioner Greg Malinowski Commissioner Roy Rogers STAFF: Robert Davis, County Administrator Alan Rappleyea, County Counsel Andrew Singelakis, Director, LUT Jerry Linder, Chief Legal Counsel, CWS Chuck Schable, Audiovisual Technician Ana Noyola, Alternate Clerk of the Board PRESS: None. 1. ORAL COMMUNICATION (2-MINUTE OPPORTUNITY) None. 2. CONSENT AGENDA Chair Duyck announced the addition of an item from County Counsel entitled Enter a Contingent Fee Agreement Regarding Opioid Litigation to the Consent Agenda. (MO 18-21) It was moved to adopt the Consent Agenda, as amended. Motion Rogers 2 nd Schouten Vote 5-0 APPROVAL OF MINUTES: January 9,

2 CLEAN WATER SERVICES 2.a. CWS MO Award Master Contracts for Professional Services for Wastewater Treatment Engineering Services (All CPOs) (Approved Under Consent Agenda) 2.b. CWS MO Approve the First Amendment to Inter-Governmental Agreement between Clean Water Services and Portland State University/Oregon Solutions (Approved Under Consent Agenda) LAND USE AND TRANSPORTATION 2.c. MO Authorize Increase in Purchase Order for Magnesium Chloride ( SA) (All CPOs) (Approved Under Consent Agenda) 2.d. MO Approve Contract Amendment 5.1 with OBEC Consulting Engineers for Design and Construction Engineering Services for the NW Springville Road Improvement Project from NW 181 st Avenue to PCC Rock Creek (CPO 7) (Approved Under Consent Agenda) 2.e. MO Approve Intergovernmental Agreement (IGA) with the City of Beaverton for Waterline Improvements for the SW 175 th Avenue and SW Kemmer Road Intersection Project (CPO 6) (Approved Under Consent Agenda) COUNTY ADMINISTRATIVE OFFICE 2.f. MO Approve Intergovernmental Agreement with the Port of Portland for the Joint Cornell Road/Brookwood Market Analysis (All CPOs) (Approved Under Consent Agenda) SUPPORT SERVICES 2.g. RO Approve Resolution and Order Adopting the Family Medical Leave Policy (Policy #304) (Approved Under Consent Agenda) 2

3 2.h. Mo Approve Amendments to the FY Position and Salary Report to Add Positions to the Washington County Sheriff s Office (Approved Under Consent Agenda) 3. BOARDS AND COMMISSIONS 3.a. Mo Appoint Members to the Cultural Coalition of Washington County (All CPOs) There was a motion to appoint Kimberly Ogadhoh, Raman Srinivasan, Mari Watanabe, Timothy Dalton, Carlos Nunez Quinard, and John Pasikowski to the Cultural Coalition of Washington County for terms ending December 31, Motion Schouten 2 nd Malinowski Vote b. MO Appoint Members to the Washington County Public Health Advisory Council It was moved to appoint new members Karen Reynolds, Gerald Corn and Sebastian Lawler and reappoint Lou Ogden, Robin Bousquet and Tom Engle to the Public Health Advisory Council with terms ending January 31, Motion Rogers 2 nd Malinowski Vote ORAL COMMUNICATION (5-MINUTE OPPORTUNITY) Laurie Marzell, 8185 SW 74 th Avenue, requested help in resolving a neighborhood problem regarding interactions with Washington County. She stated that SW 74 th Avenue is currently two dead-end streets, which are separated from each other by a small strip of land. Ms. Marzell said that due to a recent sale of property adjoining this land, the owners intend to build three houses. She stated that Washington County s Department of Land Use & Transportation has advised these owners that they must build the strip of land separating the two dead-ends of the street into a two-lane through street for traffic. Ms. Marzell said that an exception to this is provided in the County code if there is a safety problem and she testified that there is. She told the Board that this area has two intersections close to the strip in between the two dead-ends that do not have adequate visibility, as determined by a survey taken by a traffic engineer. Ms. Marzell went on to say that a hill is just before the dead-end and there is no visibility when you are ascending/descending the hill. She said that the problem is compounded by hundreds of pedestrians and bicyclists traversing this area daily. Ms. Marzell explained that people walk in 3

4 the middle of the street because there are no sidewalks. She said that building a through street for cars would put pedestrians in danger. Ms. Marzell alleged that LUT staff ignored numerous meetings and correspondence regarding this unsafe situation and required a through street regardless of the enormous risk to residents and pedestrians. She said that the neighborhood appealed the decision. Ms. Marzell reported that the Hearings Officer agreed that the safety hazard was legitimate and said that he was glad his family did not live there. She said that the appeal requested instead of a street for cars that the area be modified to a designated pedestrian/bicyclist area only. Ms. Marzell believed that this would fulfill the requirements to establish connectivity. She said that the Hearings Officer agreed and stated that he was able to provide this modification but he did not understand that that is what neighbors were asking for. Ms. Marzell recalled that nearly every testimony concluded with a request to modify the connection of these two streets by designating it as a pedestrian/bicyclist-only area. She said that a petition of 161 signatures was submitted with that specific directive. Ms. Marzell stated that the movement to provide the areas to enhance pedestrian traffic is supported by not only Metro but the City of Portland, various groups such as Walk Tigard and The Bicycle Transportation Alliance. She said that this neighborhood s CPO has made a goal for 2018 to establish more of these safe pedestrian walk areas. Ms. Marzell submitted a letter of support from her State Representative and the Head of the State Senate. (This may be found in the Meeting File.) Ms. Marzell said that the appeals judge would have been happy to designate the modification asked for. She stated that it is supported by progressive groups and pedestrians who use the area daily and it fulfills the requirements of the County code. Ms. Marzell said that an error was apparently made in the Hearings Officer s decision, which needs to be corrected. She asked for the Board s assistance in having the appeals decision reviewed again and decided in the neighborhood s favor. Chair Duyck noticed that this sounds like a land use issue. He explained that when the Board gets into the realm of land use issues, it becomes very legalistic and what the Board can and cannot do is very prescribed. Alan Rappleyea agreed that this is a difficult area. He recognized that the Board sets the rules and adopts the ordinances but does not participate in appeals. Mr. Rappleyea noted that the Board does not act as a Judge in this matter. He said that the County has hired professionals to act as Hearings Officers and there has been a hearing. Mr. Rappleyea did not know the facts of this case but did know about land use cases. He stated that a decision is made by a Hearings Officer and then citizens have a chance to appeal that to the State Land Use Board of Appeals. Mr. Rappleyea said that if you miss that appeal or if there is no appeal, then the decision becomes final. He stated that this is very important for property owners. Mr. Rappleyea reviewed that there is a very strong property rights law in Oregon and you get a vested right to develop what you get when you make your application. He said that once you get your application approved and there is no longer an appeal, you have a right to do what is called for and you have an obligation to follow the conditions. 4

5 Commissioner Rogers sensed that what is being asked is if the Board has the ability to have this reconsidered or to interject in any way. He asked Counsel if the Board has any latitude in this matter. Mr. Rappleyea replied that the Board does not. He said that if we tried to appeal to LUBA, there would be an interesting issue of appealing our own decision. Mr. Rappleyea stated that even if we appealed to LUBA, LUBA would reject our appeal and say that it is a final decision because we have missed the 21 days. He concluded that there is nothing for the Board to intervene in on this action. Commissioner Schouten asked how long ago the decision was made by the Hearings Officer. Andrew Singelakis believed that it was several months ago but did not know the exact date. Commissioner Schouten asked if there is a way, if funding exists, to build some facilities that would ameliorate the situation. Mr. Singelakis responded that the project will result in a sidewalk being built on one side of the street as part of the subdivision application. He stated that this will help connectivity in that regard. Mr. Singelakis added that the sight distance issues are under review and this has not yet been completed. Commissioner Schouten assumed that that will require professional engineering analysis. Mr. Singelakis agreed that that is a routine part of the review of a public improvement associated with a subdivision. Commissioner Schouten asked if there would be an opportunity for the neighbors to make their case and raise concerns with the traffic engineer about the sight line issues. Mr. Singelakis responded in the negative. He reiterated that the land use decision has already been made. Commissioner Schouten asked about other additional infrastructure or issues in terms of how the road will be built and designed. He stated that this is a road that will punch through between two cul-de-sacs. Mr. Rappleyea informed Commissioner Schouten that those are mainly engineering standards that are cut in stone. Commissioner Schouten asked if neighbors with expertise could speak with the engineer making his professional assessment about issues concerning sight line. Mr. Singelakis replied that there is not a lot of objectivity that can go into the standards. He said that if neighbors have suggestions, they can send them to him to pass along to staff. 5

6 Commissioner Schouten thought that could potentially be helpful. He did not think input is inappropriate. Mr. Singelakis reiterated that it is still undergoing review for sight distance, etc. He was willing to pass along comments to staff but could not guarantee anything. Commissioner Schouten was not asking for guarantees but was asking for opportunity for input beyond LUBA. He said that someone pushing a baby buggy would be better off having a sidewalk to use rather than walking in the middle of the street. Mr. Singelakis said again that there will be a sidewalk associated with the project when it is completed. Heather Bryce-Harvey s understanding was that the entire time the neighbors were fighting to have the road not go through as a two-lane road, they were asking for it to be made into a pedestrian and bicycle connection as opposed to a two-lane road. She stated that what neighbors are here to fight for now is that the latest information received is if neighbors had asked them to do a pedestrian/bicycle road, they might have considered it. Ms. Bryce-Harvey said this is what they were fighting for during the entire year. She stated that, apparently, they did not read the information or stay up on what was going on. Ms. Bryce-Harvey read from citizen letters stating that the group was after a pedestrian and bicycle path as opposed to a roadway. She read from a letter that connectivity can be achieved by creating safe passage for pedestrians and bicyclists. Ms. Bryce-Harvey testified that this is what the citizens were talking about and that the Hearings Officer must not have read it. Ms. Marzell interrupted to inform the Board that the letters were presented to the Hearings Officer. Chair Duyck let the group know again that there is a process for this and the Board is not that process. Commissioner Schouten asked if neighbors participated in the hearing. Ms. Bryce-Harvey responded in the positive. Commissioner Schouten deduced that the neighbors provided that testimony either written or oral to the Hearings Office. He said that the Hearings Officer heard it and considered it. Ms. Bryce-Harvey said that the Hearings Officer sent a letter saying if only they had asked for it, he would have been able to give it to them. She stated that the neighborhood is very confused. This seemed odd to Commissioner Schouten. Commissioner Malinowski wanted to know if this area is south of Garden Home Road. 6

7 Ms. Bryce-Harvey indicated that it is near Garden Home Road. Commissioner Malinowski recalled poking into this matter a while ago to satisfy his curiosity. He said that the County has a traffic plan that dictates number of lanes, etc. Commissioner Malinowski recommended that the neighbors take a look at that road plan because the plan calculates how many cars come and go. He explained that when the neighborhood totally redevelops to the new densities, that road is probably connected on the Transportation Plan. Commissioner Malinowski commented that if the Transportation Plan does not show the road connecting, that might have been one thing the neighbors should have pointed out. He said that if it does show it connecting and they do not want it to connect, neighbors need to be out front about that and ask for the Transportation Plan to be changed. Commissioner Malinowski explained that the Hearings Officer really has to go with the Transportation Plan. He thought the sidewalk will mitigate most of the danger for pedestrians. Commissioner Malinowski shared that he uses 185 th where it hits Springville every day and it has been a three-way stop for a long time. He said that one of the reasons is that if you are going up 185 th from the south, you cannot see over Springville; the same is true coming from the north to the south. Commissioner Malinowski remarked that we are now re-doing that road and will shave it down eight or twelve feet so that people can see each other. He said that there are some other things that could be done safety-wise if that is still a problem. Commissioner Malinowski mentioned stop signs but cautioned that you again have to go through the warrant system to ensure that one is needed. He said that if our transportation map shows that we need that connection, then we would have to come up with an alternative to that. Ms. Bryce-Harvey was still confused about the response that the neighborhood received. Commissioner Malinowski would be surprised if the Hearings Officer said that he could change the Transportation Plan. Commissioner Schouten stated that in the final analysis, the Board hires and fires Hearings Officers. He would like to know if the Hearings Officer worked within given guidelines, laws and regulations. Commissioner Schouten assumed that would be the case, i.e., that he would make decisions based on local state law. He said that in that case, the Hearings Officer would have no choice but to discount the neighbors arguments because somehow they did not square. Commissioner Schouten admitted that this is conjecture. He said that another possibility, which is more concerning, is that the state and local law provided the Hearings Officer with opportunities to be more flexible in order to create a bike/ped-only point between the two cul-desacs. Commissioner Schouten stated that the Hearings Officer heard neighbor testimony and subsequently said he did not get any testimony on that point and so could not consider it. He considered the latter concerning because it would indicate some type of derelict duty. Chair Duyck attempted to rein in this Oral Communication period, which was threatening to turn into a public hearing. Commissioner Rogers said that no matter how much he might like to facilitate what they are asking for tonight, he needed to know if the Board has any authority to do anything. 7

8 Mr. Rappleyea replied no. He said that a land use decision has been made, which is carved in stone and we cannot go back and revisit that decision or appeal it. Mr. Rappleyea stated that mistakes do get made but we cannot change them. Commissioner Rogers asked if the Board can request a review from the Hearings Officer regarding what he did consider. Mr. Rappleyea replied that we can do that. He said that staff can go back and review the decision to see what actually happened. Commissioner Schouten thought that we should do that from time to time to see if factual or legal mistakes are being made. Beyond the legal piece, he brought up the role of the engineering piece with respect to sight lines, neighborhood concerns or input that might impact the final design of the road. Mr. Rappleyea indicated that Hearings Officer s decisions get challenged all the time and so they do get reviewed. He admitted the possibility of a mistake. Tom Hettrick (name may be misspelled; not legible on sign-in sheet), 8185 SW 74 th Avenue, identified himself as a retired emergency service person who worked for Georgia Pacific for 30 years. He said that part of his job was to investigate safety accidents, a portion of which involved mobile equipment. Mr. Hettrick believed that he has expertise in sight lines, blind corners, etc. He stated that the Hearings Officer must not have heard traffic engineering evidence that two of the streets were blind without enough sight lines to meet code. Mr. Hettrick said that you will not have the braking distance or reaction time if you catch someone just over the end of the crest. He stated that the sidewalk will only be in that one section and wondered if the County will mandate that all of the property owners for the mile and one-half have sidewalks. Mr. Hettrick did not know how the County will engineer the safety of this. He spoke of the letter from the State legislators and pointed out that it was sent to Land Use management, which he assumed was thrown away. Mr. Hettrick said that some neighbors spoke to the legislators about safety on this terrible road and they said in their letter to the Board: Safety is paramount for the communities we serve and we ask that you re-evaluate your decision to extend SW 74 th Avenue as the extension will without a doubt endanger our constituents. Mr. Hettrick told the Board that 1,000 people support this initiative. He said that this will be life changing to this neighborhood. Brian Flor (name may be misspelled, did not sign in), 7570 SW Stewart Street, understood that this issue is not in the Board s purview and the necessity of having a time when review is no longer possible. He thought that this flawed process is in the Board s purview. Mr. Flor regarded this as complete incompetence, where the Hearings Officer allegedly did not know what was being asked, did not read what was going on, did not take into account the safety issues, etc. He said that even if the process is found to be completely incompetent, there is no 8

9 review. Mr. Flor stated that this opens the door for all kinds of problems to develop because even if the process is incompetent, it still cannot be redressed down the line. He asked the Board to consider the process. Mr. Flor realized that there is a need to have a point where a decision has to be made and it has to stick. He said that when we reach situations where there has clearly been incompetence in the process, there is no redress. Mr. Flor asked the Board to sort out the process. He said that this is in the Board s purview when something as egregious as this puts people in harm s way. Mr. Flor stated that the process is broken. It did not make sense to him that this cannot be fixed just because an arbitrary date has passed. Mr. Flor repeatedly asked the Board to change this process. Commissioner Schouten said that there is a process by which the neighborhood had the opportunity to timely file with the Land Use Board of Appeals. As a past practicing lawyer, he reflected that one nightmare was always to make sure that appeals are filed in a timely manner. Commissioner Schouten informed the speaker that there was an appeals process here and it was not like the neighbors had to accept the decision; they had the opportunity to file an appeal with LUBA. Mr. Flor responded that 21 days was not enough time to put together the appeal. Commissioner Schouten pointed out that that is not actually an excuse. He said that a lawyer would face a major malpractice claim if he was to say that 21 days was not enough time. Commissioner Schouten explained that that is the process and you must make sure that you timely file an appeal. He stated that if the case is as strong and compelling as Mr. Flor says that it is, he should be able to put that together and file an appeal. Commissioner Schouten noted that when people sleep on their rights or fail to follow the process, this is what happens. He said that now it is too late. Chair Duyck stated that the Board has gotten the message that there is an issue. He said that the Board will consider whether or not the process is broken. Chair Duyck emphasized that the land use process is structured very much like the court system, where there is a system of adjudication and appeals. He stated that it has to be a fair process to all, which means that everyone has an equal opportunity to make their case and to know that the outcome is certain. Commissioner Rogers wanted to see some sort of analysis of what occurred and what the Hearings Officer came up with. He said that if the process is broken, we need to see how to address that. Commissioner Schouten explained that his comments were based on what he heard from County Counsel and his own past recollection on how this process works. He said that if you have an issue with a decision made at a certain level and you have an appeal process with a statutory time period, you better make sure that you get that filed on time. Commissioner Schouten stated that if you do not file with LUBA within x amount of time, then that is it. He said that there is an old maxim in law that he/she who sleeps on his/her rights does not have the right to exercise that right. Commissioner Schouten recognized that he does not really know the facts here but he had to bring up that there is an appeal process with a time period and so it is not as if the neighbors simply had to accept incompetence. 9

10 Commissioner Malinowski thought he remembered seeing the come in from either Representative Doherty or Senator Burdick and he believed that he responded to that . He mentioned that his only goes back 90 days. Commissioner Malinowski recalled that when he researched this, if it is the one he is thinking of, the Transportation Plan said that this road needs to exist in the future. Pamela Bauer attended the September 26, 2017 Board meeting and submitted testimony regarding complaints against Washington County Community Corrections employees for dishonest/deceptive statements to her. She attended the meeting because at that point, she had not received a response to her complaint. Ms. Bauer said that at the end of her testimony, Alan Rappleyea informed Chair Duyck that his office was investigating and would provide findings for that complaint. She stated that three days later, she received a letter from Steve Berger, Community Corrections Director, in response to her complaint. Ms. Bauer said that his response was not confusing and she did not misunderstand statements in it. However, she found it troublesome that Mr. Berger wrote information that supported his subordinate s deceptive statements and created further deception through additional explanations. Ms. Bauer said that because several of Mr. Berger s statements were in conflict with the actual documentation, she submitted a complaint against him with the Department of Public Safety Standards and Training. She stated that on November 15, 2017, the information was forwarded to Don Bohn and to date she has not received a response from Washington County. Ms. Bauer stated that her complaint is about Washington County Community Corrections Probation Officer Diane Hodge s lack of skepticism in her supervision of an offender who victimized her and for whom she had four court orders of no contact, including a formal Stalking Protective Order. She said that the complaint is about Washington County Community Corrections Probation Officer Diane Hodge s March 21, 2017 court testimony under oath in a probation violation hearing against the offender. Ms. Bauer stated that Probation Officer Hodge testified to providing her with a notification, which she was not given. She said that she has repeatedly in writing and verbally asked for the date, time and mode of communication, as well as the actual documentation that PO Doty referred to in her testimony. Ms. Bauer stated that to date, she has been provided with written communications from Community Corrections that PO Doty believed that she gave her notification, that she explained that notification was given or informed her that notification was given, and that notification was not available. She submitted actual court testimony and asked again to be supplied with information requested for several months. Ms. Bauer said that if the documentation existed, she would certainly have it by now and she would go away if this information was given to her. She stated that it was a material event when PO Hodge testified under oath and could not supply her with information she said she provided to her. Ms. Bauer said that the complaint is also about Community Corrections Assistant Director Joe Simich and Mr. Berger attempting to make her believe something other than the truth regarding PO Hodge s employment with Washington County Community Corrections from the time she submitted a complaint against her on June 13, 2017 until Mr. Berger s letter to her on September 29, She stated that in written communication from both of them, she was 10

11 told PO Hodge had retired, no longer worked for the department and that she was re-hired after her 2017 retirement. Ms. Bauer alleged that none of these statements were true. Ms. Bauer said that the complaint is not about whether PO Hodge worked or currently works part-time, full-time or in a temporary capacity with the department. She stated that this complaint is also not about whether paperwork regarding her status as part-time, full-time or temporary capacity with the department was completed in a timely manner. Ms. Bauer brought copies of the complaint with her and requested that each Board member read it. (Copy may be found in the Meeting File.) She requested the Board to ask Mr. Rappleyea and Mr. Berger to complete the complaint questions, which are tabbed in yellow. Ms. Bauer said that the questions follow a timeline and are supported by actual documentation, which is communication between Washington County Community Corrections and herself. She stated that the questions are not onerous and do not require any explanation but rather yes or no answers. Ms. Bauer asked the Board, after receiving the reply, to compare it to an August 24, communication between Washington County Community Corrections employees and State of Oregon Department of Public Safety and Training, which is in contradiction to the written statements given to herself by Mr. Berger and Mr. Simich. She stated that Washington County Community Corrections from the bottom to the top has been organized to actively participate in deception and that she is confused as to why she is being lied to. Ms. Bauer said that when a complaint is filed with the Department of Public Safety Standards and Training, unlike a CPA, attorney or physician, it is not investigated unless the actual agency refers it to the state. As a CPA, she knows that if a complaint is filed against her and is valid, it is investigated and if she does something wrong, her license is pulled. 5. BOARD ANNOUNCEMENTS Commissioner Schouten announced that there will be no Board meeting on January 30, 2018 because the Board s practice is not to meet on the fifth Tuesday of a month. Alan Rappleyea stated that there is a special meeting on January 29, 2018 the Clackamas County, Multnomah County, Washington County joint session for a state senate appointment. He said that it will take place at Marylhurst University at 1:30 p.m. Mr. Rappleyea informed the audience that the Board will next meet on Tuesday, February 6, 2018, with a Worksession beginning at 8:30 a.m. and a Regular Board Meeting convening at 10:00 a.m. 6. ADJOURNMENT: 7:16 p.m. Motion Terry 2 nd Schouten Vote

12 MINUTES APPROVED THIS DAY 2018 RECORDING SECRETARY CHAIRMAN 12