HomeMy WebLinkAboutItem 6 - PH/Ord.on Real Prop.CmEUGENE CITY COUNCIL
AGENDA ITEM SUMMARY
Public Hearing and Possible Action: 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 22, 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 two primary questions at this point are whether the council should
adopt such an ordinance, and if so, what provisions should be included within it.
A work session was held on November 8, 2004, on an ordinance implementing Measure 37's real
property compensation procedures, and the public hearing on the ordinance that had been scheduled for
the same night was postponed to, and held on, November 15, 2004. The council also 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. Following the public hearing, the council
asked a number of questions; those questions are addressed in Attachment B.
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 be 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
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conclusion of the work session, the council approved a resolution expressing the council's opposition to
the passage of Ballot Measure 37.
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;
· Establish 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.
Based on comments received from councilors, some revisions have been made to the proposed
ordinance, including making the public hearing mandatory before the council can waive or modify
regulations, and requiring the City Manager to post information about all claims filed with the City on
the City's website as they are received.
Adoption of this ordinance is just the City's first step in implementing Measure 37. The staff report for
the original scheduled hearing on the Measure 37 implementing ordinance indicated staff would be
returning to the council on November 22 with a plan that reviews the current work program, proposes
new work program items related to Measure 37, and considers amendment of current high priority work
program items. At this time and after further consideration, staff is not prepared to offer such ambitious
remarks so early in the process. Staff has initiated discussions with the Department of Land
Conservation and Development regarding current periodic review work programs but no conclusion or
direction has been reached. Additional discussion must occur before a recommendation can be made
related to Eugene's work program. It is expected those discussions will be ongoing for some time and
staff will plan on returning with the items mentioned above once clarity or direction has been received
regarding implementation of mandatory work program items. Staff would also like to review the
recommendation with the Planning Commission prior to returning to the City Council. In the interim,
staff will be making recommendations to the Planning Commission and City Council on a case-by-case
basis on legislative matters in relationship to Measure 37.
The Planning Division is moving forward on administrative issues that will be required in order to be
ready to process claims beginning December 2, including developing a form, developing internal
procedures and tracking systems, and developing a web page tracking system. At this time, the costs
associated with these are being tracked and can be handled within the FY 05 PDD budget.
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Ballot Measure 37 will become effective December 2, 2004. In order for the ordinance to take effect
prior to Measure 37's effective date, the ordinance must be approved by at least six councilors.
COUNCIL OPTIONS
1. Adopt the proposed ordinance (as revised and included in the packet as Attachment A).
2. Amend and then adopt the proposed ordinance.
3. Don't adopt a claims processing ordinance.
CITY MANAGER'S RECOMMENDATION
The City Manager recommends that the council adopt the revised ordinance. As the City gains
experience with processing claims, and as more is learned about Measure 37 (from the courts, the
Legislature, other local governments and the Attorney General's office), the council can amend the
ordinance.
SUGGESTED MOTION
Move to adopt 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.
ATTACHMENTS
A. Revised Draft Ordinance
B. Response to questions
C. Written comments received by City
FOR MORE INFORMATION
Staff Contact: Glenn Klein
Telephone: 682-5080
Staff E-Mail: glenn.klein~harrang, com
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ATTACHMENT A
LEGISLATIVE REVISION
OF ORIGINAL ORDINANCE
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.
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
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.
Ordinance- 1
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ATTACHMENT A
LEGISLATIVE REVISION
OF ORIGINAL ORDINANCE
Exempt land use re.qulation. A land use regulation that:
(a) Restricts or prohibits activities commonly and historically
recognized as public nuisances under common law;
(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 regulation. Includes:
(a) Any statute regulating the use of land or any interest therein;
Ordinance - 2
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ATTACHMENT A
LEGISLATIVE REVISION
OF ORIGINAL ORDINANCE
(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.
Valid claim. A claim submitted by the owner of real property that is subject
to a land use regulation, other than an exempt 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;
Ordinance - 3
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ATTACHMENT A
LEGISLATIVE REVISION
OF ORIGINAL ORDINANCE
(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 [sclc] ownership of the entire property by the claimant(s),
and the date the property was acquired;
(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 or certified by the Appraiser Certification and Licensure
Board of the State of Oregon; and
(e) Copies of any leases or Covenants, Conditions and Restrictions
CCCR'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.
(4) Following receipt of a claim, the city manager shall post on the
city's website information related to the claim, including the
Ordinance - 4
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ATTACHMENT A
LEGISLATIVE REVISION
OF ORIGINAL ORDINANCE
name(s) of the claimant(s), the location of the property, the
regulation(s) identified in the claim, and the amount claimed.
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, if necessary, filing a lien on
the property.
2.085 Real Property Compensation - City Manager Recommendation.
(1) Following an inveStigation of a Claim, the city manager shall forward to
the city council a recommendation, together with an explanation to
support the recommendation, [lc ,r...., ,.. ,-,,,~""*' ....... ......, ,..,.,.',l 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
Ordinance - 5
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ATTACHMENT A
LEGISLATIVE REVISION
OF ORIGINAL ORDINANCE
(d) Evaluated with the expectation of the city acquiring the property, by
condemnation if necessary.
(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. The city council shall
not waive or modify a land use regulation unless the council first
holds a public hearing. Notice of [the] a public hearing shall be
[~] mailed at least 14 days prior to the public hearing, and
shall at a minimum be sent 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 - 6
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ATTACHMENT A
LEGISLATIVE REVISION
OF ORIGINAL ORDINANCE
(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
[~=halleP~jed] land use regulation(s) with respect to the subject
property to allow the owner to use the property for a use
permitted at the time the owner acquired the 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 a valid claim 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, [~t ] the council may[, ''+ ''*° '~;
,.a,. ,~...~ ~,a~,v,~...,.~v~,, i..,~.~. ,.~v,x ,, ~,~v v,,-~v,.j as
part of the decision re.impose with respect to the subject property, all
of the land use regulations in effect at the time the claimant acquired the
property.
Ordinance - 7
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ATTACHMENT A
LEGISLATIVE REVISION
OF ORIGINAL ORDINANCE
(5) A decision by the city council to remove or modify a land use regulation
shall be personal to the claimant(s). Unless the resolution adopted by
the council provides otherwise, the action of removing or
modifying the regulation [a~] 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 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 if the neighbor prevails.
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
Ordinance - 8
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ATTACHMENT A
LEGISLATIVE REVISION
OF ORIGINAL ORDINANCE
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
unanimously agreed to proceed with adoption of this Ordinance with an abbreviated
notice of the public hearing thereon.
Section 4. 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 - 9
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ATTACHMENT B
RESPONSES TO QUESTIONS AND SUGGESTIONS
The ordinance should require that information about each claim be posted on the City's website.
Section 2.075 has been revised to add a new paragraph (4) to require the city manager,
following receipt of a measure 37 claim, to post on the city's website information related
to the claim, including the name(s) of the claimant(s), the location of the property, the
regulation(s) identified in the claim, and the amount claimed.
The city manager's recommendation to the council on a measure 37 claim should be
accompanied by some discussion explaining the basis for the recommendation.
Section 2.085(1) has been revised to require the city manager to include with his
recommendation an explanation to support that recommendation.
When does measure 37's provisions related to "family member" become a factor? Why does the
ordinance define "family member" and "exempt land'use regulation" since the remainder of the
ordinance does not use those terms?
Measure 37's incorporation of the concept of"family ownership" is less than clear. It
appears that if a governmental entity decides to pay compensation in response to the
filing of a claim, then the amount of compensation owed factors in family ownership. On
the other hand, if the governmental entity decides to "waive" the regulation, the waiver
determination factors in only the length of time that the current owner has owned the
property. In other words, "family ownership" or history is irrelevant to how or whether a
regulation gets waived.
Two sections of the ordinance have been revised to make the above more clear. The
definition of"valid claim" in section 2.070 has been changed to exclude from a "valid
claim" any claim based on a regulation that is an "exempt land use regulation"; that latter
term is defined to exclude land use regulations enacted prior to acquisition of the property
by the owner or a family member. Section 2.090(2)(a) has been revised to limit the
council's authority to waive (i.e., remove or modify) a regulation to allowing "the owner
to use the property for a use permitted at the time the owner acquired the property."
Therefore, while the council will be able to approve compensation based on family
ownership, the council will not be able to waive a regulation except to the extent that
waiver allows a use that was permitted at the time the owner, not the owner's family,
acquired the property.
The ordinance should make mandatory a public hearing and notice.
As noted above, the ordinance now requires notice of all claims to be posted on the city's
website. In addition, section 2.090(1) has been revised to require the council to hold a
public heating before the council may waive a regulation (and to mail notice at least 14
days prior to any public hearing). The ordinance would allow, but not require, the
council to hold a public hearing before the council could decide to (a) pay compensation,
(b) deny the claim, or (c) acquire the property. (Again, if a public hearing were held, then
notice would be required.)
If the city council desires that the ordinance require a public hearing regardless of the
nature of the council's decision (i.e., waive, deny, compensate or acquire), then the
council should amend the ordinance by deleting the second sentence of 2.090(1) and
changing "may" to "shall" in the first sentence.
Should the claims process include a jury trial in municipal cdurt on the amount of
compensation?
The city's legal position would not be advanced by asking the municipal Court to conduct
a jury trial on the validity of a claim, or on the amount of compensation that would be
due for a valid claim. The process would be costly to the city (paying for the municipal
judge, the jury, the city attorney, and the city's expert witness (appraiser) for the trial).
The city cannot require the property owner to participate in that process, and even if the
property owner participated in the process, the outcome would not be binding on the
property owner. The property owner would continue to have the right under Measure 37
to file his or her claim in circuit court 180 days after the claim had been filed with the
city.
Should the city require that a property owner waive his or her right to file a claim under
Measure 37 if the city agrees to upzone the property or take similar action related to the
property that increases the value of the property (and possibly imposes additional restrictions
that the property owner might want waived)?
We agree that such a requirement should be considered. We have been researching legal
issues related to requiring such a waiver. Such a requirement need not be part of the
claims processing ordinance, and does not need to be adopted prior to the effective date
of Measure 37. It is one of the follow-up items related to Measure 37 implementation
that staff intends to bring to the Council after the first of the year.
~. [~0~ll}rt $11~}~,~ ATTACHMENT C
260 East 38th Street
I EO IyED Eugene, 0,89o. 9740
~¥ OIT¥ MANAGER
Phone: (541) 34:>-3060
NOV ~ 6: 2OO~ Fox: (541) 683-1104
~ovember 1D, 2004
'~oyor ~im Torrey ond Eugene Councilors
City of Eugene
777 Pe~l 5tPeet, ~oom [05
Eugene, O~egon 9740~
be~ ~yor To~ey ~nd Eugene Councilors:
We ~s Pespected ~ent~l p~ope~ty owne~s ~e eng~ed in ~ highly competitive
industry. Newsp~pe~ ~nd inte~net ~ds in ~bund~nce, ~ttes? to the ~v~il~bili~
cle~n well m~int~ined ~ffo~d~ble p~iced ~ent~ls. In such ~ m~rket no ~enter should
eccept visibly substandard conditions.
It is obvious that these youn~ c~us~de~s ~the~ed m~ny supportePs who h~ve not
personally experienced violations. [ commend them fo~ thei~ o~de~ly p~esent~tion,
fop [ ~lso h~ve been ~ cPus~de~.
Possibly they ~e motivated by thei~ p~ents, who ~s like c~us~de~s, c~mp~igned fo~
L~ndlo~d/Ten~nt ~nd Congress of R~ci~l Equality in the [970's. We ~eed ~nd
supported thei~ efforts until thei~ p~opos~ls bec~me L~w.
bo we now need duplication city by city7 5olution: Put mope teeth in the existin9
state I~w. Compensate the offended fo~ thei~ time ~nd financial loss. Stiffen the
fine fo~ ~epe~t offenders.
Finally: bo not move into highly visible substandard housing regardless of Ioc~tion.
V~c~ncies ~nd loss of ~ent ~e ~ ~e~t m~inten~nce motivator.
The citizens fo~ housing standards seek ~n ~nswe~ f~om you. It must be No
Duplicate L~w. Encourage them ~o strengthen the State L~w.
Sincerely,
C. Robert 5uess