CCMinutes - 11/22/04 Mtg - Laserfiche WebLink

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Councilor Solomon expressed concern about the lack of a cap on fees. She also wondered if it was true that a waiver granted to one person was not transferable and, to this extent, she asked if it was possible for a person who had purchased a dwelling for which a waiver had been granted under previous ownership to be found to be in violation of land use code to the extent that he or she would have to tear down said dwelling. Mr. Klein replied that the answer was yes, assuming that the house could be built in the first place. He referred to the language of the ballot measure which stated that in lieu of compensation the governing body may authorize the current owner of the property to use the property in the way that the owner could have at the time the owner acquired the property. He related that in discussions with other lawyers it was thought that banks would refuse to finance any uncertainties in a building and a non-transferable waiver of land use regulations would create this sort of uncertainty. Councilor Solomon asked, regarding the private cause of action, if a neighbor would sue the property owner or would sue the City because of the belief that land use waivers on an adjacent property had brought down the value of his or her property. Mr. Klein responded that the property owner would be the subject of the suit. Councilor Solomon felt this violated the spirit of the law and voiced her opposition to the ordinance. Councilor Taylor expressed her willingness to pass the ordinance as it stood and amend it later. Councilor Meisner indicated he agreed with some of the thoughts of Councilor Kelly. He was troubled by the lack of a cap on the fees. He felt there should be a floor or a percentage basis for them. He also was not happy with Section 2.090(5), the restraint on alienation. He thought it possible that the City could be subject to legal claims made by someone who built pursuant to a waiver and then was unable to sell or transfer ownership. He had substantial questions about urban transition areas and, in particular, River Road/Santa Clara, and what would apply and who would apply it. Mayor Torrey ascertained that seven councilors would be present at the work session on November 24. Councilor Bettman acknowledged that the ballot measure brought up many questions. She did not think the ordinance provided for enough public notice. She related that she had heard that some people believe the ballot measure to be constitutionally challengeable as its exclusion of pornographic retail stores could be construed as a violation of 1st Amendment rights. She asked if this issue would be raised. Mr. Klein did not think Ballot Measure 37 as a whole could be constitutionally challenged, though he did believe some aspects of the measure would be challenged and stricken. He explained that the measure contained a severability clause so that parts of it could be eliminated without eliminating all of it and that voters would have theoretically been aware of this. Councilor Bettman said fees were used to compensate the City for research it would have to conduct. She opined that the claimant should be responsible for the research but the language in the ballot measure did not provide this. She stressed that the council had an obligation to create a process in order to implement the ballot measure. Councilor Poling recognized the measure was passed by a majority vote. He said regardless of how he felt about the measure, he could not support the ordinance. He was primarily concerned with the open-ended fee structure. He felt it would be possible for someone to accrue a $25,000 fee. He averred that people should know the cost of a process prior to embarking on it. He declared that there needed to be language MINUTES--Eugene City Council November 22, 2004 Page 12 Regular Meeting