Item B: New Land Use Regulations and Measure 37

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COUNCIL OPTIONS A. Rely on the City’s existing Measure 37 implementation ordinance for dealing with new land use regulations that impose new restrictions on use and reduce fair market value of property. Do not create a new variance-type process to include in new land use regulations. B. Adopt a new variance-type process to avoid creating Measure 37 claims for new land use regulations. Model the process after a type II or type III land use process. C. Adopt a new variance-type process, but model the process after the existing Measure 37 claim process. D. Adopt a new variance-type process, with the initial decision made by the Planning Commission. If the Planning Commission’s decision is to deny the variance, then the decision could be final, with any appeal going to LUBA. If the decision is that a variance should be granted, notice could be provided to the council, which then could choose to review that decision, and if the council agrees that the variance is authorized, decide whether to compensate instead of granting the variance. If the council chooses option B, C or D, then the council also should decide whether the new process should apply to (1) just the Goal 5 protection ordinance; (2) all new land use regulations; or (3) all new and existing land use regulations. CITY MANAGER’S RECOMMENDATION The City Manager recommends that a new variance-type process be created for new land use regulations that have the potential for resulting in new Measure 37 claims. The criteria for approval of such a variance should be tied to Measure 37, such that unless a property owner would have a valid Measure 37 claim, no variance would be available, and if the owner would have a valid claim, the variance would be limited to the extent necessary to avoid such a claim. With respect to the process, the City Manager recommends option D above. The application should be decided by the Planning Commission (following notice and public hearing). However, instead of the process ending after the Planning Commission, the process should allow for further review by the council in the event that the Planning Commission determines that the variance should be granted. If the Planning Commission reaches that decision, then before the decision becomes final, the City Manager would provide notice of the decision to the council. If the mayor or any councilor concludes either that the decision is in error (i.e., not a valid claim), or that the City should compensate the property owner, rather than waive the restriction, the elected official could indicate a desire to discuss the matter. The matter then would be added to a future council agenda. If no elected official provides such an indication within 14 days of the City Manager’s notice, then the Planning Commission decision would be final and take effect. SUGGESTED MOTION Move to direct the City Manager to develop a variance-type process consistent with the manager’s recommendation, and to incorporate that process in the Goal 5 protection ordinance. L:\CMO\2005 Council Agendas\M051010\S051010B.doc