City Council - Special Meeting

We're good? Okay, I hereby call to order with my hand gavel the special meeting of the Lafayette City Council. Please rise for a fight.

I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.

Indeed, can you please hold?

I called the special meeting based on some deadlines that we might have to deal with that would be coming up before

our next regular meeting. So this is coming out of the planning commission meeting in case we needed to make some changes to the construction bid, not bid, but just the construction project and officially decide if we are accepting the planning commission's ruling. So, staff report, Brandon.

Thank you, Madam Mayor. So, last Thursday, myself and Council Gildan spoke with the Planning Commission in regards to the City Council's desire to apply for a variance for a 70-foot flagpole. That, at the time, was denied. It was a modified approval of making it 50 feet. The reason behind 50 feet was that there, as we mentioned at the last council meeting, there's some public properties that we have that are not considered public zones. And if Veterans Park were a part of the public or P zone, they would be able to have a minor variance allowable of about 50 feet. So the Planning Commission, instead of approving 70 or the other amount that was a part of the bid and the motion of the 40 foot, they decided on a compromise of 50 feet. The 50 feet compromise is not in any of our bids nor in the contract with the the contractor who won the bid for the Veterans Park. So need to decide how council wants to move forward. We have the 50 foot bid. We can do a changeover for the 50 foot bid. We can go lower. We can wait. There's other options. Just kind of wanted to see if everybody was able to watch or listen to or get any information on the meeting and see how anybody wants to go forward.

Does David have input? I've seen him on the screen.

Hey, David. He might be here. If there's any questions regarding anything outside of the balance that is presented to you in the staff report tonight.

So can we move forward with the flag being basically a question mark at this point? You mean like remove it from, like put a hold order on it? Can we remove plug, move forward, and then do a change order to add it when we figure out what we're doing here?

Yes, yes. And that's, we're kind of, the 20th was the last day for the contract, but with the bid coming in, we had a few more days to work on the bid. We can, myself and Gordon, collect and move to remove that as part of the contract. And then as we get towards the end of the contract, we can adjust how so. or if you feel that you need more time and we need to go out for a bid later on for another flagpole or find another way that we can do that as well.

Part of the bid, though, if I recall correctly, part of the bid is the fact of bringing in machinery that's going to be required to put in this flagpole, whether it's 40-foot, 50-foot, or 70-foot, correct?

Yes. But that's what I'm saying. If we move forward with the bid without a flagpole, that machinery, that's all they need it for.

I understand that, but usually bids are cheaper when that is budgeted into a project because they're already coming out here.

Yeah, no, I think the idea is that we have to access bid by the 28th. Yes, well, at the end of that, well, it's already been in the notice to proceed would be due by the 28th. So we haven't proceeded. It gives us a little time to figure out. I think everybody still wants a flagpole. It just gives us some time to figure out what kind of flagpole we're putting in. The idea is still to have them to the pipeline. We just don't know the size at this point.

So we'd be asking Brandon to put basically a change order in once things get started to remove.

Well, so if they start the project, no flagpole. A month and a half from now, we'd say, oh, we can put in a size flagpole. We change order to put it back in. That's the idea. Yeah. Yeah.

Do you have to do it twice? We start the project with the, we accepted the bid at 40 foot. 70, but 40 foot. There was two different numbers. Yes, correct. And we accepted the first one, or we accepted this one if we can't get that one. Take that one in, then put the change order in. After that bid has already been, I mean, once we're going on it, do we have to take two steps to do it, take it out, then put it back in?

No. I mean, the council can pretty much direct me just to remove it from all, pause it for right now, and then I revise.

What if there are avenues that take us more time to figure it out, like preserve our ability to be flexible on what we're putting?

Because we're still moving forward to notice to proceed, which means the notice to start construction. At that point, it's locked in. They've got a lot of things to do. Is it flight full, the first thing they're going to put in?

No, no, no. So that does buy us some time because they're going to be doing other things. And we would still have time to say, no, we accepted this lower bid. But we want to make a changeover.

But what happens if they're ready to start on the flagpole and we're still in the process of trying to figure out?

That's my fear. Because I just, I'm mildly familiar with the speed of government. Really? And.

Nazi Lafayette government.

That's right. No one in this room. Get around, sir. That's it, though.

We meet once a month.

Not everything moves as quickly as we'd like it. Right. Because the next meeting we have would put us. We have one shot to get this thing right. And I just want to make sure we get it right.

So if we went, if we went ahead and said, hey, Brandon, we want to start working on Veterans Park, but as of now, no, no work on a flagpole.

Because we need to decide how you can communicate to the builder, you know, we're probably going to come back to you with this. We're just, you know, being conservative here to make sure we get this done correctly from the city side. Correct.

Yeah. Because the intent of what council really wanted wasn't wasn't the end result. That's a good idea.

But also it doesn't mean we disregard the planning commission. I mean, that's what they're there for, right?

Well, that's a full discussion.

Do we appeal what their ruling was?

I'm not sure how the function goes. I think it's a special session. We have to stick to the topic.

Well, I think that's part of the... Yeah, that's part of it. That's why I didn't mention if there wanted to be an appeal for counsel.

Because if they wanted to appeal, would it change the next step? What's the timeline for the appeal deadline?

David?

Can you hear me?

What's the timeline to appeal from your own planning commission?

Yes. So did Ron come in today to sign the order? So the planning commission chair just came in today to sign the notice or the modified approval for the city council's application. So today is technically day one since he signed the application, the order.

And what's our deadline to appeal? I'm not saying your name.

Thank you. It's looking at that.

Yeah.

You asked me the question with the one document I don't have open on my multiple screens. It's in your LZDO. It's going to specify time to appeal. Is our planner here present tonight? I think they should be able to answer that pretty quickly.

I thought it was 60 days.

Yeah, I thought it was 30 or 60 days too. I don't have the LZDO up. Let's see. The development standards are district winter great procedures. To feel.

Peel peel peel.

Yeah, considering it's right here.

I know. Well, I'm excited about everything, but.

Money's on David.

At the end. It's on today. Field period, Section 3.205.1. 3.2.

We've got 15 here, but 21 to LUBA. It says 10 days. I hope that's not true. Hey, David, do you happen to have the Chapter 2 laid out? I think it's 15 days.

I'm searching along with you as quickly as I can.

I can't do a general search on my phone. Hold on. Search. There we go.

Because this was a type two decision out of planning commission, correct?

Yes.

Okay. I'm working my way there. Appeals to city council.

The LCDO says section 3.205.01 is the appeal period. Info.

Three point six.

3201. Yeah.

Come on, come on. There we go.

Two, three.

After providing notice of the decision required in subsection G4, a 15-day period beginning on the day after the notice was mailed shall be provided for submission of written appeals.

Yeah, so today it got signed. It'll be mailed out tomorrow. So 15 days from, let's say, Monday. We get it, yeah.

But he came here and signed it.

Yes, he came here because he's the board chair. So he signed it here today, but we actually have to mail out the decision to all of the people who spoke for it against it neutrally.

Okay.

And then the surrounding.

I just wanted to make sure the triggering date wasn't today because usually it's like a personal service.

I mean, you're going to connect with us today.

Actually today when I was in the office. So we have 15 days from when it's postmarked. So the postmark in the morning, 15 days, 15 days from tomorrow. And so then take it to August. Yeah, that's from postmark. I thought it was from receipt.

So the appeal is due before our next council meeting.

Yes.

Well, I guess first we should.

I think we should resolve that issue. I am not in support of an appeal.

I feel an appeal just puts a bandaid over a bigger topic, which to me is that we have some zoning that's not correct. And so I don't think an appeal handles just that one, and it's an appeal I would rather look at. The other issue that was brought to the attention through it, which was that our lands not zoned correctly.

I'm actually okay with an appeal in this situation because the planning commission didn't apply any of the criteria to their decision.

Can you elaborate to some of those?

So, for a major variance, there's 5 criteria to me, and we laid out pretty heavily in our application why we thought it met each of the criteria and.

uh they they didn't apply any other criteria to the decision it was more of a split the baby situation than a let's look at the law situation and i understand that but the issue here is it's the city council's idea yeah and then it goes to the planning commission that doesn't even they did it if they did it incorrectly but then it comes back to the council

That looks real. That's why we have to decide if it's something we... I guess you could look at optics of it, but it's also... I'm more of just like, what's the letter of the law? What's the reason?

I feel that I'm along the same lines when it comes to what the decision was didn't hit criteria, and I also feel like it strayed from... What the variance was for, which was structural and everything I've learned about flag poles is the pull itself is the structure. The flag is. Not part of the structure and that every decision was made based off of the actual flag. Which could be its own, but that the pull itself. Wasn't.

Was the structure in that and I don't disagree with that, but the fact that the council is not unbiased here. Obviously, I think that creates a real issue with an image.

I think I think the 2 things we do have to worry about is ex parte contact. Because I think everybody in this council has seen a social media post newspaper article. So, ex parte contact is pretty much everybody. Everybody would have to say that they'd have that and then. bias to an extent.

Was there a social media post about this? David?

I don't know about social media. Did David have something?

Go for it, David. I do. I can help here. I like everything that I'm hearing so far. Let me add to the conversation. So you all know that cities are organized through the Constitutional and Home Rule Authority. It allows cities some flexibility beyond certain statutory requirements unless there's explicit preemption. So the city council convening a quasi-judicial posture is different than a city council giving a direction to staff. So in this instance, as I understand, the council is asking staff to carry out its wishes to have a 70-foot flagpole. This required the major variance, and the city staff is acting as an intermediary of the governing body. So there's no legal prohibition that prevents the city from applying for its own variance. The council directions staff to try to get a 70 foot flagpole is under your policy level, whole rule authority for dictating how public policy is zone property and public property. So the city can, the staff can follow through any direction by appealing the decision from the planning commission. And I think what I'm hearing from Council Gilligan is correct. The Planning Commission had to apply the standards in the LZDO for major variance. And if they got off topic and talked about flag, about noise, about aesthetics, things like that that aren't part of the standards, then I think a reasonable direction to staff would be to appeal to yourselves. Once the appeal gets to yourselves, you take off your politician hat and you put on your judge's hat. Your posture is quasi-judicial. And so at that point, we go through the list of disclosing ex parte contacts, any biases that you might have for or against. And here's where we stop. It's like, politicians are not expected to be unbiased. Your folks elect you because they want you to do certain things at the policy level. But then you, as Councilor Gilligan correctly pointed out, are going to apply the standards in the LZDO to whether it meets a requirement for major variance or not. And we can...

I don't disagree with that, but it's still the optics of it, and it's still the public understanding that.

Which... tonight if we decided to appeal, we're not making the decision on accepting the appeal or not. And then that is for us to hash out and decide for each of our own decision on it. If my stance during the appeal, I feel I can stand behind that for me to decide.

I sent Brandon a memorandum that I wrote last year on how to parse out ex parte contacts, how to make your disclosures bias and conflicts of interest, how it interacts with your roles as politicians when you take off your politician hat and put on your judicial hat. And I can have Brandon just send it to all of you to read on your own. There's a different version of it that I wrote for Aurora that's part of the public record for their planning commissioners. So it's not, there's nothing legal advice in it. It's more of a high level overview with citations to Oregon administrative rules, some cases and Luba head notes. Luba land use board of appeals applies just brief head notes about their cases. And so there's a whole PDF that I sent that just gives a short description of, you know, what some other jurisdiction did with an ex parte or a bias and what the decision was. And so you can have that for your own, your own education. One thing, before we get too deep into the weeds, one thing I got to say is that in the appeal process, there's a case called Multnomah County versus Multnomah County. That's a LUBA case. The city cannot appeal its own decision to LUBA. So you keep that in mind. Anybody who appears in writing or in person orally or in writing to the land use hearing would retain the right to appeal as individuals. So you might find yourself with a citizen appeal when the council does make its decision. And at that point, there's a couple of other laws that kick in, specifically ORS 197-830-13B, which if the city finds itself in an appeal posture to Luba, it can withdraw its decision for reconsideration. And then the counterpart to that is Oregon Administrative Rule 661-010-0021. So I think right now what you're doing internally with your local government and trying to advocate for the 70-foot flagpole all makes sense. It's all reasonable. And just remember when it's time to put on the different hat, to sit in judicial posture, quasi-judicial posture, all the politicking leaves, and it's a strict application of the standards, along with the disclosures of bias, ex parte contacts.

And I understand that, David. One of my concerns is, though, there's significant others part of this that are connected to this council who have been the ones posting this stuff on social media. So I think, again, from the optics, it looks really bad

And then we choose to declare and make our statements.

I'm just letting my feelings and concerns be well known.

Yeah, and that is an ex-party. An ex-party contact would be with a third party, not in an open hearing, properly noticed where the public can participate.

I understand that. I'm just mentioning it because the social media was grouped into this ex-party contact. Okay.

Yeah, spend some time with the memorandum that I wrote because ex parte isn't itself a disqualifying feature. So long as you make the disclosure, make the statement, the ex parte disclosure during your quiz and usual hearing. And then I'll be available if anyone wants to email me questions about the memorandum. I can feel free to email me.

If we moved to appeal, what does that do for, then we'll have to really talk about the construction bid, because.

Yeah, because I'm not able to take some time. I mean, it's up to the council. The council chooses for me to appeal. I would start the appeal process, then stop the notification, and I've never done an appeal, so I would have to work with David and Ollie, the city planner, to work on how that works. need a little more time to pull that out.

Well, there's been mention of issues with rezoning and this and that. How long would we be looking at on a time frame of a rezone?

Well, if the council delegates the planning commission to look at P-zones, that would, I mean, just like the mobile food unit, that can probably take three, four months.

Several months. You have to make an application to LUBA to approve your rezoning. and they'll have their time to reconsider. It goes through a hearing process at the Planning Commission. It's months.

Yeah. That's what I thought. But the public gives us 50 minor variance, like 60, right? Yeah, 15. Yeah, yeah, right. It was 15. I said variance. That's not what it is. Public opening gives us 50. Minor variance gives us 60.

Yep.

20%.

Something like that, yes. Yeah, it is.

Yeah, the LZDO for public, semi-public 2.108.04C is 50, from what I looked at today. So 50 wouldn't even need a minor, which, and then a minor is 20% or less. So 20%. 50 is 60, yeah.

That would probably be sometime, I would think, what is it? February, March, I would say probably the latest, the earliest.

Yeah.

Which is right around the time we're hoping to bring something to City Council on the housing capacity, UGB and BLI stuff.

So, well, and I think no matter what we decide for the for this topic. I think we were already on track with zoning discussions, no matter what this is. Brandon, I know I'm not allowed to vote. Am I allowed to make motions?

I've never actually looked at that. I would think not. David, if the mayor doesn't vote and they only break a tie, they can't entertain a motion, but can they actually make a motion?

So I'm not following the question. We're in a special meeting. It was properly noticed. And so you can make motions and decisions.

So if the mayor can, even though I can't vote?

Well, you know, I don't have an answer to that question. You threw me on that one. Is it in the charter?

The charter just says that she can only vote in the tie situation. It doesn't say anything about motions or seconds.

Oh. Well, in the absence of a rule, then I would say that the mayor should feel free to make a motion because I don't have a rule that says you can't. Anybody object to that? No.

I don't have the rules in front of me to verify, so if it's wrong, I guess they'll just have to be resolved later.

Did you develop council rules? Maybe that I haven't had a chance to look at?

The one meeting I need to bring my lab to is top two.

I'm going to move to appeal the planning decision in order to save us a little time there. I can second that.

Okay. I have on the table a motion to appeal the Planning Commission's decision. Any further discussion amongst council?

Okay. Kennedy, will you please take roll vote? Councillor Paulson? Nay. Councillor Burroughs?

Nay.

Councillor Carswell? Aye. Councillor Golden?

Aye.

Councillor Kett?

Nay. Same motion. It does not pass. So now we need to decide what we're doing based off of the Planning Commission.

So I think Councillor Gilligan's recommendation makes sense for us to make the decision on whether to proceed with the flagpole.

We'll have to have more than one special meeting in a month.

Mayor or through members of council call it.

I want. The way I would like us to proceed is that we are not starting on a 40 foot by 4 and that we look at what it would take to change the zoning to be what it should be.

So, does that mean we not starting on any of the improvements to the park at all?

No, I think we can't. I mean, I think we can start on the other aspects as long as the construction company is okay with that. My 1 concern is that. This doesn't get pushed so far down the road that there's no flagpole.

That might be the case until we get there.

No, as long as things are moving forward, I understand that. But I just would hate to see that we built the dog park apart and then things get shelved and we never come back to...

I mean, we don't have to wait for the August City Council meeting for the council to formally direct us. I'm getting general consensus that City Council wants the Planning Commission to work on this before we start working, before we do start finalizing the housing capacity study and the building, the land inventory. They can probably at least start having their initial discussions and the reasonings in August at their Planning Commission meeting. So then, you know, January, February timeframe, maybe a little sooner. But there's a general consensus for the Council.

commission to look at this i think even flagpole aside the fact that this came to our attention through this process that hey part of the part of the problem was that it's not technically zoned city hall it's not um the big a lot for the parking everything north of city hall or perkins park

Yeah, I think it makes sense for the planning commission to be looking at that and for this to be zone properly.

Yes. And if that means that we put a pause on the actual build of the flagpole until it's done correctly, and then decide based off of it done correctly, what. Or sizes, and I think that's.

All right. So just in summary, council gives us general consensus to get with the planning commission, planning commission to start working on the P-Zone. I will reach out to the city engineer and the contractor tomorrow to tell them to proceed and monitor to see where we're at with the P-Zone stuff, planning commission, and if the planning nearest meeting to when the contract would be done with work. Is that secret all right?

Yep.

Yes. And before I ask for the motion, I do just want to thank Councillor Gilkin for taking the time and energy to attend that meeting on our behalf. So unless there's anything else you need from us, I move to adjourn. All those in favor?

Aye.

Thank you, David.

Thank you.