Item 3A: Approval of City Council Minutes

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of applying the variance to existing regulations. Mr. Klein said given the lack of any claims based on existing regulations, it made more sense to him to adopt a process limited to new land use regulations. He said that the council might encounter unintended consequences if it attempted to extend the variance to all the existing regulations. He suggested the topic was more appropriately discussed in executive session. Responding to a question from Mr. Kelly, Mr. Klein confirmed that it was staff's intent that the applica- tion would come to the council if a councilor requested a review, but the issue was one of timing and the State mandate for a decision within 120 days. Staff suggested the application go directly to the Planning Commission to compress the timeline. Ms. Bettman determined from Mr. Klein that when he discussed a variance, he was talking about waiving a regulation. She said that property owners still had the ability to file a legal claim under Ballot Measure 37. The City could not preempt the use of that option. Mr. Klein agreed, but said if the council adopted the ordinance and a property owner filed a claim, he would recommend to the manager that he deny the claim because the property owner would not be able to claim a restriction on use. A property owner would not know until they go through the process if the Goal 5 protection ordinance restricted their use of a property. Ms. Bettman said the variance sounded like a proactive preemption or automatic "opt out," building a "trap door" into any regulation, Goal 5-related or otherwise. In addition, the City would doing some of the work for the claimant in terms of establishing whether they have a claim. Since the process needed time, if a property owner did not like the outcome of the procedure, there was less time for the City to respond. Ms. Bettman requested a comparative time line so she could evaluate that issue. Mr. Klein clarified that the 180-day time period established by Ballot Measure 37 would not start until the property owner went through the variance process. Ms. Bettman asked what would happen if a property owner attempted to go through both processes at the same time. Mr. Klein said the applicant would not be able to demonstrate that the ordinance reduced the value of their property or restricted its use. Ms. Bettman asked what if the property owner proved that. Mr. Klein said the council would waive the restrictions or pay the money. Ms. Bettman asked what would happen if a property owner wished to construct a second house but was restricted as to its location by a setback from the riparian edge. Mr. Klein said the issue would be determined in court by an appraiser's testimony. If an appraiser stated a house could be constructed in spite of the restriction without a reduction in value, he believed the City could make the case there was no loss of use. He added that some economists and appraisers would argue that a property was benefited by the fact of the Goal 5 ordinance because others were precluded from building in the riparian area as well. Ms. Bettman asked if same appraiser could be required through this process. Mr. Klein said yes. Ms. Bettman asked if was possible the City could be at a disadvantage as a result of its adoption of the ordinance as case law developed and precedents were established. Mr. Klein did not think so. He said that staff envisioned a property owner would only qualify for the variance ifhe or she could prove 1) a restriction in use as defined by Ballot Measure 37 or 2) a reduction in value as that term was used in Ballot Measure 37. Responding to a question from Mr. Poling about the adoption process, Mr. Klein indicated that the variance would likely substitute for the existing Ballot Measure 37 variance language included now in the MINUTES-Eugene City Council Work Session October 10, 2005 Page 5