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HomeMy WebLinkAboutItem 6 - Ord.on Real Prop. CompEUGENE CITY COUNCIL AGENDA ITEM SUMMARY Public Hearing: An Ordinance Concerning Real Property Compensation; Adding Sections 2.070, 2.075, 2.080, 2.085, 2.090, and 2.095 to the Eugene Code, 1971; Declaring an Emergency; and Providing an Immediate Effective Date Meeting Date: November 8, 2004 Agenda Item Number: 6 Department: City Attorney's Office Staff Contact: Glenn Klein www. cl. eugene, or. us Contact Telephone Number: 682-5080 ISSUE STATEMENT Ballot Measure 37 was passed by the voters at the November 2nd election. The measure generally grants to property owners the right to be compensated, or to have regulations removed or modified, where certain types of land use regulations restrict the use of private real property, the restrictions reduce the value of the property, and the owner had acquired the property before the regulation was adopted. The council is authorized, but not required, to adopt a Measure 37 claims processing ordinance prior to the effective date of Measure 37. The questions for the work session and public are whether the council should adopt such an ordinance, and if so, what provisions should be included within it. A work session has been scheduled on November 8, 2004, on an ordinance implementing Measure 37's real property compensation procedures, to be followed by a public hearing on the ordinance that same night. In addition, the council has directed that the public hearing be continued on November 22, 2004, to provide the public with a longer time period in which to review and comment on the proposed ordinance. Note: The proposed ordinance contains an immediate effective date which is being requested in order to make the ordinance effective upon passage. Six affirmative votes are required to pass the ordinance with an immediate effective date. If the ordinance is approved with less than six votes, it will become effective 30 days after passage. BACKGROUND Prior to the November 2, 2004, election the City Council held a work session on September 29, 2004, to discuss the legal implications and potential effects of State Ballot Measure 37 on various City processes, including land use policies in the Metro Plan, refinement plans, growth management strategies and provisions of the City's land use code. The City Manager advised that the City Attorneys' Office would be working with staff from the Planning Division, Building and Permit Services Division, and the Public Works Department to explore various options available to the City if Measure 37 passed. At the conclusion of the work session the council approved a resolution expressing the council's opposition to the passage of Ballot Measure 37. L:\CMO\2004 Council Agendas\M041108\S0411086.doc Ballot Measure 37 adds new statutory provisions to ORS Chapter 197, and authorizes jurisdictions to adopt processes for filing claims, although claimants are not required to follow those processes in order to file a claim with the court. The proposed ordinance adds provisions to the Eugene Code, 1971 that: · State the purpose of the sections is to implement Measure 37 and afford a process for property owners to present their claims to the City; · Define words and phrases used in the ordinance; · Establishes where claims may be filed, and the information to be provided; · Provide that the City will charge the property owner a processing fee based on the City's actual costs incurred in reviewing and acting on the claim; · Authorize the City Manager to forward a recommendation on a claim, and if that recommendation is to deny the claim, to take final action and deny the claim if no elected official advises that the official disagrees; · Set forth procedures for the City Council's action on recommendations from the City Manager, which may include a public hearing. Adoption of this ordinance is just the City's first step in implementing Measure 37. At the November 22, 2004, meeting staff will present a plan to the council that reviews the current work program, proposes new work program items related to Measure 37, and considers amendment of current high priority items. Ballot Measure 37 will become effective December 2, 2004. CITY MANAGER'S RECOMMENDATION This item is scheduled for a work session and public hearing only. No recommendation is offered at this time. SUGGESTED MOTION None. ATTACHMENTS Please refer to draft ordinance included as Attachment A to work session item. FOR MORE INFORMATION Staff Contact: Glenn Klein Telephone: 682-5080 Staff E-Mail: glenn.klein~harrang, com L:\CMO\2004 Council Agendas\M041108\S0411086.doc ATTACHMENT A ORDINANCE NO. AN ORDINANCE CONCERNING REAL PROPERTY COMPENSATION; ADDING SECTIONS 2.070, 2.075, 2.080, 2.085, 2.090, AND 2.095 TO THE EUGENE CODE, 1971; DECLARING AN EMERGENCY; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE. Section 1. A caption, and Sections 2.070, 2.075, 2.080, 2.085, 2.090, and 2.095 are added to the Eugene Code, 1971, to provide: Real Property Compensation 2.070 Real Property Compensation - Purpose and Definitions. (1) Purpose. Sections 2.070 through 2.095 of this code implement the provisions added to Chapter 197 of Oregon Revised Statutes by Ballot Measure 37 (November 2, 2004). These provisions establish a prompt, open, thorough and consistent process that enables property owners an adequate and fair opportunity to present their claims to the city; preserves and protects limited public funds; and establishes a record of the city's decision capable of circuit court review. (2) Definitions. As used in sections 2.070 through 2.095, the following words and phrases mean: City mana,qer. The city manager of the city, or his or her designee. Claim. A claim filed under Ballot Measure 37. Exempt land use requlation. A land use regulation that: (a) Restricts or prohibits activities commonly and historically recognized as public nuisances under common law; Ordinance- l L:\CMO~004 Council Agendas\M041108\S041108C-attA.doc (b) Restricts or prohibits activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations; (c) Is required in order to comply with federal law; (d) Restricts or prohibits the use of property for the purpose of selling pornography or performing nude dancing; or (e) Was enacted prior to the date of acquisition of the property by the owner or a family member of the owner. Family member. Includes the wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in- law, mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent, or grandchild of the owner of the property, an estate of any of the foregoing family members, or a legal entity owned by any one or combination of these family members or the owner of the property. Land use requlation. Includes: (a) Any statute regulating the use of land or any interest therein; (b) Administrative rules and goals of the Land Conservation and Development Commission; and (c) Local government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances. Owner. The present owner of the property, or any interest therein. Ordinance - 2 L:\CMO~004 Council Agendas\M041108\S041108C-attA.doc Valid claim. A claim submitted by the owner of real property that is subject to a land use regulation adopted or enforced by the city that restricts the use of the private real property in a manner that reduces the fair market value of the real property. 2.075 Real Property Compensation - Claim Submittal Procedure. (1) A person seeking to file a claim under sections 2.070 to 2.095 of this code must be the present owner of the property that is the subject of the claim at the time the claim is submitted. The claim shall be filed with the city manager's office, or another city office if so designated by the city manager. (2) A claim shall include: (a) The name(s), address(es) and telephone number(s) of all owners, and anyone with any interest in the property, including lien holders, trustees, renters, lessees, and a description of the ownership interest of each; (b) The address, tax lot, and legal description of the real property that is the subject of the claim, together with a title report issued no more than 30 days prior to the submission of the claim that reflects the ownership interest in the property, or other documentation reflecting sole ownership of the property by the claimant, and the date the property was acquired; Ordinance - 3 L:\CMO~004 Council Agendas\M041108\S041108C-attA.doc (c) The current land use regulation(s) that allegedly restricts the use of the real property and allegedly causes a reduction in the fair market value of the subject property; (d) The amount of the claim, based on the alleged reduction in value of the real property supported by an appraisal by an appraiser licensed by the Appraiser Certification and Licensure Board of the State of Oregon; and (e) Copies of any leases or Covenants, Conditions and Restrictions ("CCR's) applicable to the real property, if any, that impose restrictions on the use of the property. (3) Notwithstanding a claimant's failure to provide all of the information required by subsection (2) of this section, the city may review and act on a claim. 2.080 Real Property Compensation - Fees. (1) The city manager shall maintain a record of the city's costs in processing a claim, including the costs of obtaining information required by section 2.075 which a property owner does not provide to the city. Following final action by the city on the claim at the local level, the city manager shall send to the property owner a bill for the actual costs, including staff and legal costs, that the city incurred in reviewing and acting on the claim. (2) If the property owner does not pay the amount due within 30 days, then the city shall pursue collection, including filing a lien on the property. Ordinance - 4 L:\CMO~004 Council Agendas\M041108\S041108C-attA.doc 2.085 Real Property Compensation - City Manaqer Recommendation. (1) Following an investigation of a claim, the city manager shall forward a recommendation to the city council that the claim be: (a) Denied; (b) Investigated further; (c) Declared valid, and waive or modify the land use regulation, or compensate the claimant upon completion of an appraisal; or (d) Evaluated with the expectation of the city acquiring the property by condemnation. (2) If the city manager's recommendation is that a claim be denied, and no elected official informs the city manager within 14 days that the official disagrees, then the city manager may deny the claim. If an elected official objects, then the city manager shall wait an additional seven days to see whether three more elected officials object to the proposed denial. If they do, then the city manager shall schedule a work session with the city council. If not, the city manager may deny the claim. 2.090 Real Property Compensation - City Council Decision. (1) The city council may conduct a public hearing before taking final action on a recommendation from the city manager. Notice of the public hearing shall be provided to the claimant, to owners and occupants of property within 300 feet of the perimeter of the subject property, and neighborhood groups or community organizations officially recognized by the city council whose boundaries include the subject property. Ordinance - 5 L:\CMO~004 Council Agendas\M041108\S041108C-attA.doc (2) Upon conclusion of any hearing, and prior to the expiration of 180 days from the date the claim was filed, the city council shall adopt a resolution that: (a) Determines that the claim is a valid claim and removes or modifies the challenged land use regulation(s) with respect to the subject property; (b) Determines that the claim is a valid claim and compensation is due to the claimant in an amount set forth in the council's resolution; (c) Determines that the claim is valid and that the city should acquire the property; or (d) Denies the claim. (3) The city council's decision to waive or modify a land use regulation or to compensate the owner shall be based upon consideration of whether the public interest would be better served by compensating the applicant, or by removing or modifying the challenged land use regulation(s) with respect to the subject property. (4) If the city council removes or modifies the challenged land use regulation, it may, at its discretion, put back into effect with respect to the subject property, all of the land use regulations in effect at the time the claimant acquired the property. (5) A decision by the city council to remove or modify a land use regulation shall be personal to the claimant(s) and shall automatically become invalid and void upon the transfer of any ownership interest in the subject property by the claimant to anyone. Following the voiding of the Ordinance - 6 L:\CMO~004 Council Agendas\M041108\S041108C-attA.doc decision because of a transfer, any use of the property must be consistent with all regulations in effect at the time of transfer, or thereafter amended. Should a development or use not be consistent with such regulations, then the use may be declared a public nuisance and abated as provided in chapter 6 of this code. (6) If the city council adopts a resolution under (2)(a) or (2)(b) of this section, the city manager shall record on the property a copy of the resolution with Lane County Records. 2.095 Real Property Compensation - Private Cause of Action. If the city council's approval of a claim by removing or modifying a land use regulation causes a reduction in value of other property located in the vicinity of the claimant, the neighbor(s) shall have a cause of action in state circuit court to recover from the claimant the amount of the reduction, and shall also be entitled to attorney's fees. Section 2. The City Recorder, at the request of, or with the concurrence of the City Attorney, is authorized to administratively correct any reference errors contained herein or in other provisions of the Eugene Code, 1971, to the provisions added, amended or repealed herein. Section 3. Due to the passage of Measure 37 at the General Election on November 2, 2004 with an effective date 30 days thereafter, the City Council declares it is necessary for the preservation of the public health, welfare and safety for this Ordinance to have immediate effect. On November 3, 2004 the City Council Ordinance - 7 L:\CMO~004 Council Agendas\M041108\S041108C-attA.doc unanimously agreed to proceed with adoption of this Ordinance with an abbreviated notice of the public hearing thereon. Section 4. Therefore, this Ordinance shall become effective immediately upon its passage by the City Council and approval by the Mayor, retention by the Mayor for more than ten days, or readoption over a Mayoral veto by two-thirds of all members of the City Council. Passed by the City Council this Approved by the Mayor this __ day of November, 2004 __ day of November, 2004 City Recorder Mayor Ordinance - g L:\CMO~004 Council Agendas\M041108\S041108C-attA.doc