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HomeMy WebLinkAboutCCMinutes - 11/22/04 Mtg MINUTES Eugene City Council Regular Meeting Council Chamber--City Hall November 22, 2004 7:30 p.m. COUNCILORS PRESENT: Bonny Bettman, George Poling, Nancy Nathanson, Scott Meisner, Betty Taylor, David Kelly, Gary Papd, Jennifer Solomon. Mayor James D. Torrey called the meeting of the City Council to order. 1. PUBLIC FORUM Mayor Torrey reviewed the rules of the Public Forum. Patti Duncan, 4270 Hyacinth Street, spoke on behalf of the Santa Clara Committee for Sensible Parks and Open Space (SCCSPOS). She reiterated the neighborhood's concerns regarding the McDougal Brothers' proposal for a land swap. She related that the neighborhood was not opposed to parks, but it objected to the addition of 1,000 homes in the area. She said schools were already overcrowded and a substantial population increase would exacerbate already dense traffic. She added that she had taken her son out of Irving Elementary School because she considered his classroom to be too crowded to provide her son adequate attention. She conveyed the neighborhood's intention to remain a presence before the Planning Commission and the City Council in their continued opposition to the land swap. Zachary Vishanoff, Patterson Street, asserted that the Prisoner of War/Missing In Action (POW/MIA) flag should fly atop Skinner's Butte on a year-round basis. Mr. Vishanoff reiterated concerns he had about riverfront redevelopment and nanotechnology research. He urged the council to hold public hearings on it. He felt this development had ramifications for all of the population of Eugene that would be felt into the future. In closing, Mr. Vishanoff conveyed his objections to the new playground being installed at Skinner Butte Park. He called it a %ookie-cutter" park, similar to others built in other states. Ray Wolfe, 1473 Luella Street, asserted the City Council majority would unfairly transfer wealth from the poor to the wealthy citizens of Eugene should it grant a ten-year property tax exemption to the 13th Avenue and Olive Street condominium projects. He said some property tax assessment costs were identified in tax bills and others were not and those tax exemptions were not among the identified elements. He averred that one-third of the Lane County taxpayers were financially marginal, at, or below the poverty line income level. He stated that 74 properties were declared delinquent in the previous year and given a one-year notice prior to condemnation proceedings. He felt the proposal to grant the Multi-Unit Property Tax Exemption (MUPTE) to the condominium project was tantamount to ~reverse Robin Hoodism." He questioned the MINUTES--Eugene City Council November 22, 2004 Page 1 Regular Meeting benefits in comparison to the costs. He suggested that the potential condominium buyers be consulted regarding the MUPTE. He noted that the Budget Committee often struggled with small allocations and underwent a detailed prioritization while the City Council proposed a ~$2 million allocation with relaxed abandon." He alleged the public benefit was to expedite development of land that was certain to be developed anyway. Charles Biggs, 540 Antelope Way, wished to convey his support for retention of the Low-Income Housing Dispersal Policy as written. He thought staff was likely going to propose dismantling it. He felt the policy seemed to have positive benefits. He asserted that the reason staff was discussing this was because the planning process for acquiring land was not working. He alleged that the only land remaining for low- income housing was next to low-income housing. He opined that this was a result of such housing lowering property values. He encouraged the council to expand the dispersal policy and not to abolish it. He said it was to the community's benefit to have low-income housing dispersed throughout the City. Mort Hyman, 3863 Dorchester Lane, circulated a photograph of the land that could potentially be developed in the McDougal land swap. He noted he also represented the SCCSPOS. He opposed the land swap because he felt it would hurt the neighborhood and would not provide the park the area needed, due to a lack of funding for its development. He asked if the populace was willing to give up a portion of its ever- decreasing supply of Class 1 soils in order to provide land for another residential development. He questioned the wisdom of allowing the urban growth boundary (UGB) to be expanded to suit the purposes of one developer. He asked if allowing streets that were already overburdened by traffic to be further clogged would be prudent. He conveyed the committee's agreement that more parks were needed, but reiterated its opposition to this particular land swap. In closing, he stated that more than 800 signatures had been gathered on a petition to express this opposition. Mr. Hyman invited councilors to join the committee for one or more meetings of the SCCSPOS, held at 6 p.m. on the 2nd and 4th Thursdays of the month at the Santa Clara Grange Hall on Azalea Drive Clark Winston Cox, Jr., 1085 Patterson Street, Apartment 9, said his landlord was a partner to the developer of the proposed MUPTE at 979 Patterson Street. He stated that the West University Neighbors had submitted a letter and he acknowledged that there was some opposition to the MUPTE mostly for reasons previously stated by Mr. Wolfe. He thought the development at 979 Patterson Street would result in higher quality housing stock than what exists in the area. He stated that the exemption for the new building would not raise anyone's tax bill as it would be taxed for ten years in its current existing capacity, i.e. a parking lot. He supported granting the MUPTE for the Patterson Street development. He wished everyone a happy Thanksgiving. Mariah Leavitt, 1458 West l0th Avenue, commended the City Council and especially Mayor Torrey for their commitment to listen to Santa Clara residents and for the proposal to conduct a survey. She considered the potential development of farmland to be important enough that the proposal should be rejected on that basis alone. She recalled that the proposal was to move 197 acres of land within the UGB in order to create 77 acres of park and 120 acres of development. She stressed that farmland was an irreplaceable asset to the community. Ms. Leavitt noted that the Lane County Farmers Market grossed $1.27 million in 2002 and brought uncounted revenue gains to downtown businesses by attracting customers to the downtown area on Saturdays and Tuesdays. She cited a study in Dane County, Wisconsin, that found the average farmers MINUTES--Eugene City Council November 22, 2004 Page 2 Regular Meeting market customer spent $22.47 at other downtown area businesses. She stated that such a market could not exist without farmers and the farmers could not farm without quality farmland. She shared that she recently attended a national conference on the role of farmers markets in the nation's food system. She said the one comment heard most frequently was that the country was running out of farmers. Ms. Leavitt expressed concern that rising oil prices would radically increase the price of food. She predicted, based on many years of work in hunger alleviation, that higher prices would increase the number of hungry people in the area. With a strong local farming community, she averred the community could avoid high transportation costs while feeling more secure knowing it had local food sources. Additionally, she noted that local farmers contributed fresh produce to the local food bank. David G. Hinkley, 1350 Lawrence Street, Apartment 7, declared that the City Council did not run Sacred Heart Hospital out of the City of Eugene. He said the hospital made the decision to acquire more land long before the council's actions. He noted that a close examination of the design for the hospital would demonstrate that the new hospital would not have fit on the Hilyard Street site or the Crescent Drive site. He felt this misperception was starting to affect his wallet as the City was "urging" the Eugene Water & Electric Board (EWEB) to "sell a property on cents on the dollar" and this would cost ratepayers money. He asserted that replacement costs should be the minimum cost that EWEB would consider as a sale price. Noting some dissension among EWEB commissioners, Mr. Hinkley said it seemed this issue may be reconsidered at the board's December 7 meeting. He conveyed his commitment to testify in opposition to the sale and asked the council to stop urging the utility to sell its property for less. He opined that the price should be a premium and not a minimum. Ruth Duemler, 1745 Fircrest Drive, echoed Ms. Leavitt's comments, calling it a crime to do away with Class 1 soils. She felt fortunate to have the Lane County Farmers Market. Ms. Duemler referred to the United Way's State of Caring. She pointed out that Lane County residents were having more difficulty meeting basic needs in almost every category and more than every prior year that this survey had been conducted. She said it was the first year more needs were seen in the metro area than the rural area, with a growing population of poverty in the City of Eugene. She urged the council to think more about how the City spent its money. She asked how the City had "found" $29 million for the police station and another $15 million coming into the City because of utilities. She felt it should be a community effort to make budget decisions. She noted that funding had been cut to after school programs, community television, and neighborhood newsletters. She underscored the necessity for recreation programs for youth, another area in which funding had been drastically cut. She opined that there was no need for further taxation to pay for road repairs as the City already had the money. Rob Handy, 455-½ River Road, remarked that a healthy economy thrived on healthy neighborhoods. He opined it was better to have good relations with our neighbors than not. He related that the Metro Plan stated that the City should make every reasonable effort to annex county properties into the city limits in a positive way and asked if the City was doing so. He acknowledged that the refinement plans needed updating but felt it to be a priority that the refinement plan for River Road/Santa Clara be completed first. He averred there was no stormwater plan for the area. He predicted that issue would have to be dealt with eventually and the bill would fall on the area residents, which would further feelings of anger and mistrust of the City. MINUTES--Eugene City Council November 22, 2004 Page 3 Regular Meeting Mr. Handy noted the County had handed over land use planning for the area some years back. He commented that, while the City should be a leader on issues of community planning, there did not seem to be funding for it. Regarding communication, he said currently the funding for newsletters and mailings was prorated due to the limited recognition policy and the neighborhood organization recognition policy. He asked how the County could be enjoined as a partner in such communication. He wondered if a moratorium on annexation should be considered until the City had dealt with the stormwater plan equity issues and its relationships with special districts such as the River Road Parks and Recreation District. Dennis Casady, PO Box 5028, Eugene, objected to the two developments proposed to receive a MUPTE. He did not feel it was right to ask property tax payers to pay so that others could forego payment. Doug Newton, 147 Cross Place, pointed out that the Certificate of Need process was created to prevent unnecessary duplication of medical facilities. He opined that the reality was that the process was needed to protect consumers from the "expansionist mindset" of hospital managers, the greed of medical profiteers, and the arrogance of politicians. He asserted that The Register Guard had a conflict of interest which hampered unbiased investigative reporting. He asked what made the City believe that McKenzie- Willamette/Triad would solve its financial problems by moving a few miles downstream. He thought its difficulties were the result of contractual relationships between its competitors and large group plans. He wondered if any doctors had suggested that the number of hospital beds in Eugene needed to be doubled and that the patients should have to pay the bill. He called Triad's history with the State "dubious" and asked what would prevent them from "bankrupting this hospital, too." He wondered how voters could be convinced that new taxes were needed to support the community in the face of providing "$20 million in corporate welfare" to Triad. Mr. Newton stated that EWEB had spent $22.5 million in 1987 to build its headquarters. He surmised that it would cost much more if it were to be built today. He thought the hospital was trying to take advantage of "gullible local politicians." He opposed "giving away" property, stressing that the City did not own the EWEB site. Bruce Miller, PO Box 50968, commended the City Council for passing "Step 1" in the rental housing standards. He lauded the people who had worked for its passage. He related that he had spoken with Catholic and Jewish leaders regarding the standards. He urged them to "step up to the plate" and advocate for them. Mr. Miller complained that the University of Oregon president was an "obstacle to student progress." Mayor Torrey closed the Public Forum and called on the council for responses and comments. Councilor Taylor thanked everyone for testifying. She reiterated her opposition to the McDougal land swap, as it would take farm land out of production. She said it was bad for the Santa Clara neighborhood and bad for the whole community as agricultural land was an asset the City could not afford to lose. Councilor Pap~ thanked Mr. Handy for testifying regarding issues in the River Road/Santa Clara area. He appreciated the partnership he wanted to forge in dealing with the issues. He said the issues were not solely couched in whether to annex or not to annex, but rather how to provide the services to the area. He noted he had spent some time earlier in the day with County officials discussing how some County funds could be MINUTES--Eugene City Council November 22, 2004 Page 4 Regular Meeting brought to help in the communication process. He hoped Mr. Handy would continue to be involved in the neighborhood organization. Councilor Pap6 said the City was about to commission an inventory on commercial and industrial properties. He asked for information on whether there was a study being conducted on residential land to determine whether the City was in compliance regarding such land supply. City Manager Taylor responded that he would look into it. Councilor Pap6 thought it likely that the City would have to bring more residential land into the UGB regardless of whether the land swap with the McDougal brothers was conducted. Councilor Meisner also thanked Mr. Handy. He commented that relationship-building would be lengthy and time-consuming in the River Road/Santa Clara area. He felt the real question regarding services was how they would be delivered efficiently and effectively. He hoped the transition manager, David Reed, was able to develop a good public process for more than conversation on these issues. Councilor Meisner asked for more information on what was being contemplated regarding the Low-Income Housing Dispersal Policy. Regarding concerns expressed about the MUPTE, Councilor Meisner stated that it was true that a property tax exemption in a tax-base system produced a spread of that lost value to other taxpayers. He underscored that tax bases were abolished for local jurisdictions by Ballot Measures 47 and 50. He stated that school districts had permanent tax rates and if something was exempted it was simply lost revenue and was not made up by other tax payers. He requested that the City Manager make available to the public some of the memoranda to the council regarding the changes that those ballot measures put into effect at the local level. Councilor Kelly reminded the Santa Clara neighbors that a potential way to establish community parkland was through outright acquisition rather than the land swap. He said the 1998 bond measure included money to acquire 40 acres or more for a park in the Santa Clara area in order to provide equity with other areas of the City. He expressed discomfort at some of the feedback he had received that suggested, for instance, that the eight acres at the Santa Clara Elementary School might be an adequate park. He worried about losing the opportunity for park land on the usual scale of a community park. He added that funding for development of a park or aquatic facility was not available at present. Councilor Bettman wished to clarify that $10.5 million had been taken from the telecommunications fund and $5 million from right-of-way fees and placed in the City's reserve. She underscored that this was a part of the $28.2 million and was not in addition. She stated that this money had not previously been accounted for in any fund because some of it was still in litigation. Mayor Torrey noted that he had asked earlier in the year for the City Manager to develop an outreach process with the people of Santa Clara in order to determine what they wanted in a park. He understood that this process was underway. 2. CONSENT CALENDAR A. Approval of City Council Minutes - October 20, 2004, Work Session MINUTES--Eugene City Council November 22, 2004 Page 5 Regular Meeting - October 25, 2004, City Council Meeting - November 3, 2004, Work Session B. Approval of Tentative Working Agenda C. Appointment to Lane Workforce Partnership Board D. Adoption of Resolution 4815 Approving a Multiple-Unit Property Tax Exemption for Residential Property Located at 1375 Olive Street, Eugene, Oregon (1375 Olive, LLC) E. Adoption of Resolution 4816 Approving a Multiple-Unit Property Tax Exemption for Residential Property Located at 979 Patterson Street, Eugene, Oregon (Arthur C. Carmichael, Jr. And Larry Von Klein) Councilor Bettman, seconded by Councilor Poling, moved approval of the Consent Calendar. Councilor Taylor pulled items D and E. Roll call vote; the motion to approve the Consent Calendar with the exceptions of items D and E passed unanimously, 8:0. Mayor Torrey called for discussion on Item D. Councilor Taylor opined it was a wonderful plan for a nice building, adding that she also liked the partners in the development. However, she averred the development did not provide sufficient benefit to the downtown area to grant the tax exemption because of its location at the periphery. She also did not understand how the commercial space would be beneficial. She felt there was too much vacant commercial property in the downtown area to justify increasing retail space. She expressed concern, as well, that people purchasing the condominiums would move from other properties at which they were paying property taxes and, thus, would cause a loss of property tax income. Councilor Taylor noted that one argument given in favor of the MUPTE for the development was the "walkability" in the area, e.g. one could walk home from the Hult Center. She did not think citizens would walk over seven blocks through the downtown area late at night. Councilor Taylor echoed the comments of Mr. Wolfe. She wondered how many people decided not to upgrade because they could not afford the taxes. She thought it would be unfair to build the project with a tax exemption. Councilor Bettman, seconded by Councilor Poling, moved approval of Resolution 4815 approving a Multiple-Unit Property Tax Exemption for residential property located at 1375 Olive Street. Councilor Bettman indicated she supported approval of this MUPTE. However, she did not support the second proposal for a MUPTE couched in Item E. She felt the downtown development provided a demonstrable benefit for the area as it provided opportunities for downtown home ownership. She opined that even with the subsidy, the developers were taking on a risk. She commended Jean Tate for her vision. Councilor Kelly asked if the motion was not already on the table by virtue of being part of the Consent Calendar. City Attorney Glenn Klein affirmed that it was. MINUTES--Eugene City Council November 22, 2004 Page 6 Regular Meeting Councilor Kelly stated that the commercial space, regardless of its merits, would not receive a tax exemption. Regarding comments that suggested the City would lose property tax revenue from the people who choose to reside in the condominiums, he clarified that unless their previous dwellings were razed and all value lost from them, someone else would purchase the property and continue to pay the property taxes. Councilor Kelly commented that he routinely walked eight blocks home from performances at the Hult Center. Councilor Meisner remarked that he also walked home from the downtown area, though it was a little over a mile. He concurred with Councilor Bettman's reasons for supporting the tax exemption. Councilor Meisner underscored that no one in the City wished to restrict the downtown area to low-income housing. He said the development proposed by Ms. Tate and her partners presented a great opportunity and he commended them for taking the risk. He asserted that one successful example would bring others. He enthusiastically supported the resolution. Councilor Pap6 stressed that the council was not reviewing the MUPTE, as it had already done so and approved the use of it for the downtown area. He agreed with the favorable comments of his colleagues. He cautioned, regarding Item E, against discriminating based on ;;what we like and what we don't like." He said if someone qualified for the MUPTE the council should grant such an exemption with an even hand. Roll call vote; Consent Calendar Item D passed, 7:1; Councilor Taylor voting in opposition. Mayor Torrey reiterated that no motion was necessary on Item E. He called for council comments on the item. Councilor Taylor opposed the item for the same reasons she opposed Item D. She emphasized that the proposed exemption was farther from the downtown area than the previous one and was for rental properties. She opined that housing for students would be built whether there was an exemption or not. Councilor Bettman remarked that her opposition to Item E had nothing to do with personal preference. She averred she made policy based on what she thought was the public good. She felt there was already an abundance of rental housing in the area and adding another one would only serve to compete with the other landlords in the area who did not have a tax exemption. She indicated she would be more apt to support it had it provided opportunities for home ownership. Councilor Kelly was uncertain whether he would support this. He agreed that the way the MUPTE ordinance was set the council was to look at the exemptions on an application-by-application basis. He thought the proposed development was a higher and better use than the surface parking that existed there in the present. He noted the financial analysis on agenda packet page 143, which indicated a negative cash- flow without the ten-year tax exemption, while after ten years of the MUPTE, the property would pay approximately $34,000 in property tax per year. He related that he had been informed by one of the partners in the development that the building would not be built without the exemption. MINUTES--Eugene City Council November 22, 2004 Page 7 Regular Meeting Councilor Kelly commented that when the MUPTE ordinance had been adopted, the majority of the council did not codify quality provisions that had been proposed at one point. He noted that the proposal indicated some quality features, such as a large front porch and balconies on the units, but nothing in the exemption would require the builder to fulfill the intent of the initial design proposals. Councilor Kelly added, for the record, that though he served on the West University Neighborhood board he had abstained from voting on the recommendation the neighborhood association had submitted to the council. Councilor Pap~ asked Mr. Klein to comment on whether conditions could be placed on such an exemption. Mr. Klein asked the council to postpone the vote until the end of the meeting so that he could review the code and give informed advice. Councilor Kelly, seconded by Councilor Bettman, moved to table the item until the work session scheduled for December 6. Roll call vote; the motion passed, 6:2; Councilors Poling and Taylor voting in opposition. 3. 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 City Manager Taylor asked City Attorney Glenn Klein to briefly speak about the ordinance. Mr. Klein recalled that the council held one public hearing and a revised ordinance, with revisions in bold and strike out, was contained in the agenda packet. He indicated the changes sought to address issues that arose either at the work session on Ballot Measure 37 or at the public hearing. Mayor Torrey outlined the procedure for testimony. He opened the public hearing. Mona Linstomberg, 87140 Territorial Road, Veneta, related that real estate ads were now suggesting that homeowners who believe they were affected by Ballot Measure 37 should call for help and information. She commented that the implications of the measure were mind-boggling. She said several aspects of the ordinance could work to level a skewed playing field. She encouraged the City Council to hold public hearings on recommendations from the City Manager related to Ballot Measure 37 issues and claims as often as possible to keep it an open process with public notice and review. She approved of Section 2.095, whereby neighboring property owners could seek redress in State Circuit Court for reduction in the value of their property caused by a waiver of land use regulations on adjacent property. She supported adoption of the ordinance because, while Ballot Measure 37 spoke to the preservation of the public health and safety under exempt land use regulations, the Eugene ordinance spoke to the preservation of public health, safety, and welfare. She felt Measure 37 served certain private property rights possibly to the detriment of the property rights of others and possibly to the detriment of the community's welfare. Jim Welsh, 90050 Killian Lane, Elmira, speaking on behalf of the Eugene Association of Realtors (EAR), pointed out that both the EAR and the Oregon Association of Realtors (OAR) had been silent on Ballot Measure 37 prior to the election. He asked the council to think about the City's response to the measure in MINUTES--Eugene City Council November 22, 2004 Page 8 Regular Meeting the context of the claimant. He conveyed EAR's opposition to the section concerning real property compensation because certain features were felt to be an extreme response. He thought the ordinance to be premature as the Oregon Legislature would convene in January and would apply enacting legislation to help guide local jurisdictions. He speculated that this legislation may apply retroactive or preemptive language that might deem the Eugene ordinance invalid. Mr. Welsh called Section 2.080(1) open-ended and intimidating. He recommended that fees be established that were consistent with the cost of doing business for other land-use action process fees. He felt very few individuals would be willing to proceed without knowing what the cost would be. Regarding Section 2.090(1), he asserted that according to the language the claimant could be held responsible for paying for a public hearing and for the subsequent meetings of the City Council. He also found Section 2.090(4) to be intimidating as it allowed for the reintroduction of previous land use regulations in effect at the time the property was acquired. He called out Section 2.090(5) and noted that it required the Measure 37 resolution to be personal to the claimant and not to the property. He suggested that this could make the resolution invalid and void upon transfer of ownership. Lauri Segal, 120 West Broadway, spoke on behalf of 1,000 Friends of Oregon. She appreciated the council's review of the ordinance but felt the changes for the public good had not been made explicit enough. She recommended that Section 2.075 include a requirement that names and addresses, including residences and mailing addresses, be recorded so that claims submitted by out-of-state owners could be tracked. Regarding Section 2.075(d), she noted the ordinance required an appraiser certificate and licensure for an appraisal by a claimant and requested that the ordinance also specify that the appraiser not be related to or affiliated with the property owner involved in the claim. She related that Section 2.075(4) indicated that the City Manager would post information relating to a claim on the City's Web site. She recommended that the City participate in a statewide claims registry, not yet established. She suggested an additional subsection, the language of which would require that a notice of a pending claim would be sent to any owners or occupants 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 property. She asked that, under Section 2.090, the council not have the discretion to consider a public hearing prior to taking final action. Jozef Zdzienicki, 1025 Taylor Street, averred that the notification process should include adjoining houses, houses across the street and behind the property, and the process should be conducted by mail. He thought the notification process would make it fair for everyone and not just the person applying for a permit. David Hinkley, 1350 Lawrence Street, Apartment 7, supported the ordinance, with reservations. He did not think it was premature as the measure went into effect on December 2. He opined that part of the reason the measure passed was the public's sense that faceless bureaucrats were taking away property rights. He felt the measure could be categorized as "having faceless bureaucrats consider a claim." He noted that in his written testimony he suggested these claims be handled in the Municipal Court rather than administratively through the City Manager's Office. His second reservation had to do with the section governing public hearings as he thought the public hearing should be required. He felt the individual claims could be as controversial as the measure itself had been. Mr. Hinkley approved of the Eugene ordinance sections that instituted the private cause of action. He opined that the purpose of land use regulations was to provide rules to enable people to live in close proximity to one another amenably. He thought the Eugene ordinance balanced out the implications of the MINUTES--Eugene City Council November 22, 2004 Page 9 Regular Meeting ballot measure. He also felt the claim should end when the property owner ceased to own the property and that it was up to a new buyer to determine whether or not to buy a lawful non-conforming use. Terri Harding, 132 East Broadway, Suite 536, planning manager for Satre Associates, supported the ordinance before the council with regards to Ballot Measure 37. She especially approved of the City Council's ability to hold a public hearing on a claim if impacts to the public or adjacent neighbors were likely. She noted her preference to continue using the existing land use regulations which were applied equally to different land uses across the City. However, since the voters had approved the measure, she asserted that public notice procedures should be incorporated into the processing of claims to protect a small portion of Oregon's land use system. She supported Ms. Segal's suggestion to expand noticing requirements. Rob Handy, 455-½ River Road, asked how the need for compensation could be balanced with the commitment to the interests of all of the citizens and the quality of life of neighborhoods in the City. He wondered if the City should consider banking funds from property owners who benefited from upzoning to help offset Ballot Measure 37 claims or whether a fee structure should be established so that local government does not end up footing the bill. He asked if a claims process could be created that would accomplish the ends in a fair process. He supported Ms. Segal's suggestion that Eugene participate in a statewide registry. He also agreed with her recommendation for increased noticing. He hoped the City could insist on a public review process for the measure that ensured fairness and effectiveness and guarded against the enormous potential for abuse in the compensation process. Bob Suess, 260 East 38th Avenue, noted he submitted testimony regarding land values. He related that he bought a lot in 1961 for $600 and built a house on the property for $24,000 in 1962. He said the house was now worth $240,000. He noted that due to the lack ofbuildable lots, the cost of land had risen precipitously, causing many to be unable to buy land and build. He thought a solution to land use issues would be to have people simply apply with no fee and have the claim reviewed. He suggested that a serious claim could be brought to a higher level before incurring expense. Deborah Jeffries, 3800 North Delta Highway, stressed that a majority of the people in the state had voted for the measure, including a majority within the UGB of the City of Eugene. She averred the City was not required to pass the ordinance prior to the State's consideration of enabling legislation. She felt it looked like the City was going against the sentiments of the majority. She disagreed with disallowing a property to be grandfathered in when ownership of a property previously involved in a claim was transferred. She also thought the fee should be a firm number and not open-ended as currently proposed in the ordinance. She commented that the newspaper was now referring to the metro area as the Springfield/Eugene area. Roxie Cuellar, 2053 Laura Street, Springfield, representing the Home Builders Association, concurred that the fee should be flat and immutable. She noted that Cook County had adopted a flat fee or one percent of the compensation, whichever was greater. She felt there was a lack of consistency with the State statute as both 2.070(2)(b) and (e) in the City ordinance had left out wording from it. She urged the council to include all of the language. Regarding 2.090(4), she stated that the City could propose a change in process but could not make substantive changed from the State statute. She suggested that this subsection allowed the City to go back to the time at which the person acquired the property. She predicted that minor regulations waived in current building that would not be grandfathered in and passed on to the next buyer of a property could, in the most extreme interpretation, cause someone to have to raze a house they had just purchased. MINUTES--Eugene City Council November 22, 2004 Page 10 Regular Meeting She thought subsection 2.095 should specify that the prevailing party should be held responsible for attorney's fees. Kevin Matthews, PO Box 1588, Eugene, felt the ordinance intended to put a necessary process into place. He thought it was the duty of the City Council to respond to the ballot measure. He concurred with Ms. Segal regarding the noticing. He suggested language about the public hearings be made stronger and more clear. He thought, should the issue ofupzoning be under further consideration, the council should not move forward with such discretionary requests. He supported the council's approach to fees due to the uncertainty of the financial impacts of the measure. Mr. Matthews thought subsection 2.090(4) should put back existing land use regulations and allow some language that would serve the public good. He opposed regulations that would make it possible for current land use regulations to be waived and pose the possibility that a property would have no land use regulations at all. Zachary ¥ishanoff, Patterson Street, averred that people who supported Ballot Measure 37 were fighting against "Smart Growth" measures. He opined that the public no longer felt that the Planning and Development Department knew land use best. He felt the measure would give the State a chance to step back and look at "Smart Growth" plans and talk to the public about who was behind it and what it really was. He thought public awareness of such plans should be raised. Mayor Torrey asked the council if it was willing to take action on this issue. He warned them that comments and questions from the council could preempt further public hearings scheduled for the evening's agenda. The council indicated its willingness to take action. Mayor Torrey closed the public hearing and opened the floor for council questions and comments. At the council's request, Mayor Torrey called for a five-minute recess at 9:10 p.m. Mayor Torrey reconvened the meeting at 9:17 p.m. Councilor Kelly thanked everyone for testifying. He suggested to the council that it proceed with adoption of the ordinance as written at the present meeting because of the importance of having a process in place prior to Ballot Measure 37 going into effect. He thought it would provide experience that the council could base future amendments on. Councilor Pap6 voiced his opposition to the ordinance as it was currently written. Councilor Pap6 moved to table consideration of the ordinance until the work session scheduled for November 24. The motion died for lack of a second. In response to a question from Councilor Solomon, Mr. Klein stated that whether the City had the ordinance in place before or after December 2, if someone believed a part of the ordinance that affects the individual was unlawful, it would be possible to challenge that part of the ordinance. MINUTES--Eugene City Council November 22, 2004 Page 11 Regular Meeting 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 addressing the urban transition area. Regarding 2.090(5), he opined it was ridiculous for someone to be granted a land use waiver that was non-transferable to a new owner. Councilor Poling noted that the Lane Board of County Commissioners would not be having its first public hearing until December 8. He questioned the necessity of rushing this ordinance. Mr. Klein pointed out that the urban transition area was not something the City Council had control over as it was under the jurisdiction of Lane County. Councilor Nathanson agreed that the City should provide a firm amount for fees. She felt the council was in agreement with this and wondered if an amendment should be offered or whether a vote on the ordinance should be considered. She thought it would be prudent to defer the vote until November 24 in order to allow the City Attorney time to craft amendment language. Mayor Torrey supported placing a cap on the fees. He was unprepared to vote on the ordinance as it was an important decision and should not be made %n the rush." He expressed concern about the language that made land use variances non-transferable. He opined that voters, had they completely understood the implications, would not have voted such a clause into law. Mayor Torrey remained convinced that the council had heard heartfelt concerns from two sides of the issue and encouraged the council to listen to both sides. He thought the existence of Ballot Measure 37 was a result of people being unwilling to reason with one another in the Oregon Legislature. City Manager Taylor shared his recommendation to adopt the ordinance and then let staff and the City Attorney return after the first of the year with thoughtful changes guided by research and public input. Councilor Pap6 stated that he was unwilling to proceed without a cap on fees. He asked who would be required to pay the prevailing party fees. Mr. Klein replied that, should the neighbor prevail, the claimant was required to pay the fee in a private cause of action, but that there was no language assigning the responsibility for the fee in the reverse scenario. Councilor Pap6, seconded by Councilor Meisner, moved to table the agenda item until Wednesday, November 24. Councilor Kelly did not think the council would have better information at the work session that it did not already have. He opposed tabling the item. Councilor Bettman called it a fiduciary responsibility to have a process in place to manage the complaints that would likely result from the ballot measure. She predicted that the City would be defenseless against a ;;rash of claims" on December 2 without the ordinance. Councilor Taylor opined that nothing would be accomplished by delaying the vote until November 24. She foresaw many possible amendments to add to the ordinance as the ramifications of the measure were better understood. Councilor Nathanson agreed that some of the issues that were troubling her colleagues had to do with the language of the ballot measure and would be worked through in the courts. However, while the ordinance MINUTES--Eugene City Council November 22, 2004 Page 13 Regular Meeting could be fixed later, she felt the council should determine a formula for a fee structure in the present. She indicated she would support the motion to table in order to provide staff the chance to come up with some options for fees. Councilor Meisner supported the motion to table. He concurred with Councilor Nathanson that some sort of fee schedule needed to be set forth. Councilor Meisner asked if a potential claimant could completely bypass the process, according to the language, file a claim and go to court. Mr. Klein replied that a property owner must file a claim with the City, but the property owner could choose to ignore the City's process. Councilor Meisner stated that the problem with this was that a property owner could do so as aproforma action to get into the court and the City could, meanwhile, rack up fees which would later become a lien. Councilor Bettman requested amendment language for the creation of a mechanism in order to track out-of- state owners. She also asked for amendment language to require that an appraiser have no business or personal relationship with the property owner. She suggested, too, that staff provide amendment language for her that expanded the area required to be noticed. Councilor Pap~ asked if the ordinance prohibited the council from saying that a land use waiver ended with the sale of the property. Mr. Klein replied that the default was that the waiver would go away. Councilor Pap~ surmised that the council could say the waiver should remain with the property. Mr. Klein then responded that the question was whether Ballot Measure 37 actually authorized this. He stated that home rule authority did not apply to override the measure. In response to a question from Councilor Pap~, Mr. Klein stated that a person was not required to hire an appraiser but in the course of litigating a claim in court, it would be difficult for a land owner to prove a loss of value without one. Mayor Torrey recommended that staff bring some language that indicated that a land use waiver should be transferable with a property, unless Ballot Measure 37 did not allow it. He preferred taking that position rather than assuming the court would support such a move. He also agreed that staff should bring a proposal to the Wednesday work session for a fee cap of some kind. Roll call vote; the motion to table passed, 5:3; Councilors Bettman, Taylor, and Kelly voting in opposition. 4. PUBLIC HEARING: An Ordinance Establishing the S-HK Historic Kaufman House Special Area Zone; Amending Section 9.8865 of the Eugene Code, 1971; and Amending the Eugene Zoning Map Mayor Torrey stated that the matter was a quasi-judicial one and asked if councilors had conflicts of interest to disclose. Councilor Bettman disclosed that she had visited the site approximately one year ago and had visited with residents in the area. She did not feel this represented an actual conflict of interest. MINUTES--Eugene City Council November 22, 2004 Page 14 Regular Meeting No other councilors indicated a conflict of interest. Mayor Torrey opened the public hearing. Terri Harding, 132 East Broadway, Suite 536, explained that she was representing the Facilities Management Division of the Central Services Department. She said the item before the council was the creation of a special area zone for the Kaufman Senior Center. She stated that no funding had been allocated by the City for programs for senior citizens at that location since 1998. She related that, since July 2003, the Emerald Empire Council on Aging had been operating senior programs at the Kaufman House. The City provided free rent and major maintenance funding for two years, as per a resolution passed in August 2003. She said the resolution mandated that the organization begin paying market-rate rent in July 2005. She stated that one option was to establish it as a Historic Landmark, already completed, and then create a special area zone detailing uses and standards appropriate for the use of it as a senior center. She reiterated that the Planning Commission had voted unanimously to recommend the motion before the council. She underscored that Facilities staff was committed to promoting a reasonable list of uses that fulfill the council's directive and were compatible with the neighborhood. She believed the proposal before the City Council did so. There being no other requests to speak, Mayor Torrey closed the public hearing. 5. PUBLIC HEARING: An Ordinance Concerning Cell Towers, and Amending Section 9.9750 of the Eugene Code, 1971 City Attorney Glenn Klein recommended the Mayor open the public hearing and continue it until December 6. Mayor Torrey opened the public hearing and indicated it would be continued until December 6, 2004. The meeting adjourned at 10 p.m. Respectfully submitted, Dennis M. Taylor City Manager (Recorded by Ruth Atcherson) MINUTES--Eugene City Council November 22, 2004 Page 15 Regular Meeting