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HomeMy WebLinkAboutCCMinutes - 11/24/04 WS MINUTES Eugene City Council Work Session McNutt Room--Eugene City Hall November 24, 2004 Noon COUNCILORS PRESENT: Bonny Bettman, George Poling, Nancy Nathanson, Scott Meisner, David Kelly, Betty Taylor, Gary Papd, Jennifer Solomon. Mayor James D. Torrey called the work session of the Eugene City Council to order. He indicated that Ms. Solomon would be arriving late. Mr. Poling participated via speakerphone. Mayor Torrey noted that the agenda before the council was different than that previously published. He had worked with City Manager Dennis Taylor to restructure the agenda to allow the council to finish its very full schedule prior to the break. If any councilor objected to taking action on an item today, that item would be dropped from the agenda. A. ACTION: Adoption of Resolution 4816 Approving a Multiple-Unit Property Tax Exemption for Residential Property Located at 979 Patterson Street, Eugene, Oregon Mayor Torrey determined that Ms. Taylor objected to dealing with the item at this time, and he dropped it from the agenda, noting the council would consider the issue on December 6, 2004. B. 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 Ms. Bettman, seconded by Ms. Nathanson, moved to adopt Council Bill 4884, 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. Mr. Kelly recalled that when the process started, the council had agreed that if and when the annex was sold, the proceeds would be directed to the Kaufman Trust Fund. He thanked staff for its work on the issue. The motion passed unanimously, 7:0; Ms. Solomon not yet having arrived at the meeting. C. 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 The council was joined for the item by City Attorney Glenn Klein and Planning Director Susan Muir. City Manager Dennis Taylor acknowledged the work they had done on the issue prior to the work session. MINUTES--Eugene City Council November 24, 2004 Page 1 Work Session Ms. Bettman, seconded by Ms. Nathanson, moved to adopt Council Bill 4887, an ordinance concerning real property compensation. Mr. Klein reviewed newly proposed text regarding the hiring of an appraiser. Ms. Bettman, seconded by Mr. Kelly, moved to adopt the text reviewed by Mr. Klein. Ms. Bettman believed that as a matter of due diligence, it was important to have an independent property appraisal to protect the taxpayers' interests. Ms. Solomon arrived. Mr. Pap~ suggested that %onflict of interest" could be defined as being pursuant to the statutes. Mr. Klein indicated that would not be sufficient because the conflict of interest statutes did not apply to the property owner. Mr. Pap~ wanted to apply those rules. Mr. Klein said that could be done, but he recommended the council adopt the language before it and consider the suggestion when revisions were made to the ordinance in the future. The motion passed unanimously, 8:0. Mr. Klein reviewed the next possible change, Section (4)(2) related to notice, providing three options: When an application was received, the City could: 1) post on the Web site, as-is; 2) post on the Web site, and require City Manager Taylor to e-mail the same information contained on the Web site to neighborhood groups; or 3) physically mail information about the claim to owners and occupants within 300 feet of the property and to neighborhood groups and organizations. Mr. Klein noted existing notice provisions did not address what happened when an application was merely received and suggested that such a notice could raise questions at a time when the City had no answers, costing a great deal. Mr. Kelly, seconded by Mr. Pap~, moved to adopt Option 2. Mr. Kelly said he supported the option because of the negligible cost and because it gave the neighborhood organizations a ~heads up" at little cost. Ms. Bettman agreed with Mr. Kelly. She believed the situation was different from a land use application as land use applications had associated criteria and an end date for a decision. She requested a friendly amendment that included notice to community organizations outside the boundaries of the area officially recognized by the City Council or those who apply to be on the interested parties list. Mr. Kelly preferred not to include the friendly amendment in the ordinance as he believed the City's Web site design would make it easy for someone to add themselves to the City's interested parties list. City Manager Taylor indicated that was something staff could do in addition to what was required through the ordinance. Ms. Bettman felt it was important to flag her suggestion for the future when further revisions to the ordinance were made. MINUTES--Eugene City Council November 24, 2004 Page 2 Work Session Ms. Nathanson was not entirely comfortable with the option because the claim in question would not yet have been ruled valid. Mr. Klein concurred. The notice would merely be notice of the claim and claim amount. Ms. Nathanson asked how many land use applications were not actually acted upon due to feasibility. Ms. Muir indicated she had no precise number but could confirm there were some such applications. Ms. Nathanson was not entirely comfortable with the option given that fact. She suggested that the option was not sufficiently inclusive in terms of boundaries; for example, what if an organization was across the street? Mr. Klein suggested the council consider that issue in the future. Staff had already started an interested parties list, and could examine other ways of doing the notice in the future. Ms. Nathanson said she would have suggested language to the effect of ~whose boundaries include or are immediately adjacent to." Mr. Pap6 asked if there would be a plat map on the Web site so people could see their properties in relationship to the claim. City Manager Taylor was unsure how the page would link with the plat map at this point in time. Ms. Muir added that the Web page has no map on it at this time, although she anticipated upgrades would be done in the future. The property's address would be listed at this time. Mayor Torrey solicited additional council comments. Ms. Bettman said the option was a low threshold and she did not think it would take much effort for the City to send out an e-mail to the neighborhood organizations. It was her hope the neighborhood organizations would work with residents who were potentially impacted. She pointed out that the difference between the land use process and the Ballot Measure 37 claims process was that the latter process was not dependent on a City decision, as the claimant could go directly to court. Mr. Meisner supported Option 2 as a reasonable alternative. He asked Mr. Klein if a neighborhood organization would have any standing once a claim went to court. Mr. Klein indicated he was unsure and believed at this point it depended to some degree on how the claim got to court. The measure itself did not speak to the issue. The motion passed unanimously, 8:0. Mr. Klein reviewed possible changes to Section 2.080 related to fees. He first discussed what other communities were doing, noting that some communities were proposing to charge a fee based on a resolution adopted in the future. Other communities were requiring upfront deposits and, if that proved to be inadequate, would require more to proceed or charge at the end of the process. Florence had imposed a cap of $1,500 on the fee if the claimant submitted all information requested by the City. Mr. Klein reviewed three options related to this section. He said that Option 1 was to leave the ordinance as drafted; that is, to collect the actual costs of collecting a claim. Under Option 2, if the claimant provides a deposit of $1,500 and submits all requested information, that amount is the fee, even if the cost of processing the application exceeds that amount. If the claimant failed to provide all the information, the $1,500 is the deposit toward the ultimate cost, which would be the lesser of the actual cost or $7,500 plus the cost of an appraisal. He termed Option 3 the Crook County option, $1,500 or one percent of the amount claimed for compensation, which ever is greater. He clarified that was the deposit, not the fee. In Crook County, if the hearings official determined the amount of deposit inadequate to cover costs, he or she could refuse to go forward until the municipality received the difference. Mr. Pap~, seconded by Ms. Solomon, moved to adopt Option 2. MINUTES--Eugene City Council November 24, 2004 Page 3 Work Session Mr. Papd wanted to have a limitation on what the City could charge for the claim applications. He liked Option 2, terming it fair and flexible. Ms. Bettman thought Option 3 was futile because the claimant had the option of going directly to court. Mr. Klein concurred. He indicated he had offered the option because from past discussion, some councilors appeared to like what Crook County was doing. City Manager Taylor noted that exempting the appraisal allowed him to feel comfortable with Option 2. Ms. Bettman did not support going forward with Option 2. She preferred Option las it recovered the actual costs of processing the claim, which she believed was the fairest approach. Under Option 2, taxpayers would subsidize the cost of the largest windfall claims that local governments received. She called for full- cost recovery for claims made. Ms. Taylor agreed that the taxpayer should not subsidize the cost of processing Ballot Measure 37 claims. Mr. Kelly commended staff's creativity but he was not supportive of Option 2 because he did not want the taxpayers and other City services to be %tuck with" a very large charge from a very large claim from a large, longstanding property owner. The proviso did not address the land use regulations in effect when the property was purchased, and that might be necessary to know. If the concept of ~family member" came up in the case of a corporate claim, that could require considerable research. He believed that the City's cost could easily reach five figures, and asked where that funding would come from. Mr. Poling thanked Mr. Klein for his research. He supported Option 2 because it was predictable for those seeking to file claims and, as the City developed history with the program, it could return to the ordinance if necessary and make the revisions needed to recover more. Mr. Meisner acknowledged Mr. Kelly's comments but said he wanted some kind of predictability for claimants. While he opposed the measure, it was a fact of life, and he did not want to put forward the message that the %ky was the limit." He agreed that the ordinance could be revisited. He hoped that staff would pay careful attention and in the case of large claims, pay close attention to the cost of claims processing as he believed they would go to court anyway. City Manager Taylor said he was persuaded earlier that staff could track the costs of the ordinance and if it turned out the costs were higher than predicated, return to the council with suggested revisions. Ms. Nathanson thanked staff for developing the options before the council. Mayor Torrey also commended staff for its work. He supported the motion because he thought it demonstrated good faith on the part of the City. Mayor Torrey noted that Eugene had defeated the measure, although it was supported by the remainder of the state. Mayor Torrey solicited a second round of council comments on the motion. Mr. Pap~ said he did not want the fees to be set so high that the City would appear to be retaliating against property owners who took advantage of their rights under the measure. Ms. Bettman did not think the City should be penalizing taxpayers by requiring them to subsidize Ballot Measure 37 claims. She said the City's response to the measure with regard to the need for definition was MINUTES--Eugene City Council November 24, 2004 Page 4 Work Session because the ballot measure was skewed in favor of the claimant. It had no built-in balance in terms of protecting the City or taxpayers. That was the council's task. She said there was nothing wrong with charging actual costs, but there was something wrong with capping the cost for the claimant and asking the taxpayer to pick up the difference. The motion passed, 6:2; Ms. Taylor and Ms. Bettman voting no. Mr. Klein called the council's attention to possible changes to Section 2.090(1) related to a public hearing for claims. Ms. Bettman asked for more information about the possibility of applying the regulations in effect at the time a property was purchased by the owner. Mr. Klein indicated that would be part of the waiver or modification. Ms. Bettman, seconded by Ms. Taylor, moved to adopt the text for Section 2.090(1) reviewed by Mr. Klein. Ms. Solomon clarified with Mr. Klein that the amended ordinance required the City Council to hold a public hearing if it chose to either waive regulations or pay compensation. Mr. Pap~ felt it was reasonable to have a public hearing if the council was going to waive a regulation but thought it should be discretionary for small claims. In those cases, he thought it appropriate for staff to make a determination that compensation should be paid. He was willing to consider a threshold beyond which hearings were held. Mr. Kelly concurred with the remarks of Mr. Pap~, saying he did not see an upside to holding public hearings on very small claims. If a claim had the potential for a negative physical impact on the land he wanted to hold a hearing, and the ordinance as initially drafted provided for that. Ms. Taylor said that the claims involved may be very significant and public hearings should be used to keep the public informed. If a claim was insignificant and the public did not care, the public hearing would be very short. Mr. Poling believed staff would recognize when a claim amount reached a critical point and should be subject to a public hearing. He opposed the amendment. Mayor Torrey indicated that in the case of a tie, he would oppose the amendment. Ms. Bettman argued that if the City was going to have predictability in its fees, it should have predictability in its processes. She supported the amendment because she believed there was value to having public hearings to address all the issues that would be raised by the measure. She said that people would become more aware of what was going on, and public hearings would have an educational component to them. She did not think the public had heard the last of the measure. Mr. Kelly said he would have supported the amendment if there was no other notice for a claim. He pointed out that claims would be posted on the City's Web site and the relevant neighborhood group notified. He thought that would give even small claims public exposure. MINUTES--Eugene City Council November 24, 2004 Page 5 Work Session Ms. Taylor suggested that the council would spend more time discussing whether to hold a hearing than the hearings would take. She agreed that the public hearings served an educational purpose. She believed many people never consulted the City's Web site and there were many people who watched council meetings. Also, not all residents were covered by neighborhood organizations. City Manager Taylor agreed with a statement from Mr. Pap6 that the cost of public hearings was not insignificant. Mayor Torrey encouraged the council to allow the process to work. He said that the council should give the staff and the Oregon State Legislature a chance to do their jobs. Mr. Kelly pointed out that when the council held a hearing, the 300-foot notice requirement was triggered, which could cost the City far more in mailing expenses than the claim itself. He preferred for the council to be able to determine whether a hearing was actually needed. Ms. Bettman asked that the issue be flagged for future discussion because a consistent, standardized process was needed, and that included a dollar threshold. The amendment to the motion failed, 5:2; Ms. Bettman and Ms. Taylor voting yes. Mr. Klein reviewed possible changes to Section 2.090(5), dealing with the question of transferability. He said that essentially, the ordinance was written to mirror the language in Ballot Measure 37. Ms. Bettman said that approach placed the City Council back where it started because the language was ambiguous. Mr. Klein concurred. He believed any modification or waiver was not transferable but others, such as the organization Oregonians in Action, disagreed with him. The issue would be decided by the Court of Appeals or the Supreme Court in the end. He believed the City was protected by the text in question in either case. Responding to a question from Ms. Bettman, Mr. Klein said that the modification was transferable to the extent that Ballot Measure 37 said it was. That issue probably will need to be decided before a property owner can secure financing for a development project based on a Measure 37 waiver. Mr. Meisner, seconded by Mr. Pap~, moved to adopt the text reviewed by Mr. Klein. Mr. Meisner noted his previous concerns about the section in question He felt the option presented by Mr. Klein was a defensible way to handle the issue, and was unsure he could have supported the ordinance with the text that was previously in the ordinance. Ms. Solomon supported the amendment. She asked if anyone had filed a challenge to the issue of transfer- ability yet, and if a challenge was filed, whether it would be expedited. Mr. Klein said nothing had been filed because the measure had not yet taken effect. He did not think that issue would be before a court until there was a set of facts on which a court could rule. A court case must be formulated with transferability as issue before a court could consider the issue. He added that the legislature could expedite resolution of the issue if it wished. Responding to a question from Mr. Pap~ about the City's ability to facilitate transferability, Mr. Klein indicated he believed that was precluded by Ballot Measure 37. Putting the measure aside, the State has preempted the City's ability to grant these waivers or modifications; one could only do so by the standard MINUTES--Eugene City Council November 24, 2004 Page 6 Work Session process of changing land use regulations or granting variances or adjustments where authorized. Ballot Measure 37 said that notwithstanding the preemption, the measure would allow governments to waive regulations in a way consistent with the measure. To the degree the measure indicated the waiver was transferable, the City had the authority to do so. The City could not do more than the measure allowed. Ballot Measure 37 was not clear, but it still addressed the issue. How it addressed it was not clear until the courts rule. He continued to interpret the measure as precluding transferability. Responding to a question from Mr. Pap~, Mr. Klein said he did not know if the Attorney General's Office had been asked to provide an opinion on Ballot Measure 37. At this time, the office was not answering questions of a general nature or stating its opinion of the measure. He anticipated that mini-opinions would be provided to State agencies making inquiries, and those would largely be focused on process rather than the content of the measure. Mr. Kelly agreed with Mr. Klein's interpretation of Ballot Measure 37, which appeared to him to speak to the owner of the property at the time of the purchase. Mr. Kelly opposed the amendment because he supported the original text, which made it clear that the waiver allowed the owner to do what the owner wished to do under the regulations in place at the time of the purchase of the property. Plus, he believed the original text gave the council flexibility. He suggested that the council could adopt a resolution allowing transferability in a single case if the council decided such an action satisfied the public interest. Responding to a question from Ms. Taylor about the legality of allowing for transferability in a single case, Mr. Klein said he did not know because the measure was not clear on the issue. The legal effect of the amendment was the same as the initial language, because ultimately the decision would be made by the courts. He noted that Oregonians in Action believed that transferability was implied because the regulations in place previously would have allowed for transferability. Mayor Torrey indicated support for the amendment, terming it a commonsense approach that took the pressure off the City of Eugene and placed the burden of proof on the proponents of the measure. He said they should pay the legal costs associated with the challenge. He would be unable to support the main motion in the event of a tie if the amendment failed. Ms. Bettman was opposed to the amendment because it would make up for the mistakes made by the proponents of the measure. The ordinance would hand them the language they needed in the first place, and would produce an industry of opportunistic entities seeking out individuals owning property and encouraging them to file a Ballot Measure 37 claim. Mr. Kelly asked Mr. Klein to clarify that until the courts addressed the issue of transferability, the text in Ballot Measure 37 gave the City no guidance about the issue, leaving the council to decide what was meant by transferability on a claim-by-claim basis. Mr. Klein said the council could take that approach, but he had envisioned that in a typical situation, a claim would be filed and the council would decide against compensation and agree to waive a standard. The council would then adopt a resolution that included the provision on transferability, which was dependent on further interpretation by the courts. If the property owner making the claim was granted it and then transferred the property to a new owner who sought to develop it on the basis of the waiver, in the absence of further court direction, he would advise the Planning Division that the waiver did not cover the new owner. That would likely get the issue into court. However, Mr. Klein anticipated either legislative or court direction prior to that time. MINUTES--Eugene City Council November 24, 2004 Page 7 Work Session Mayor Torrey indicated his belief the measure would be challenged. In the meantime, he wanted the City to do the right thing. Responding to a question from Ms. Bettman about a situation in which a property was transferred to a family member, Mr. Klein said that ~family" was used in different ways in the measure. Under Ballot Measure 37, by way of example, a senior citizen could transfer her property to family members before any waiver or development. The family member would have a claim for compensation based on that family history. However, the family member's ability to get a waiver would ignore family history, and be based only on the present family member's ownership. The amendment to the motion passed, 5:3; Ms. Taylor, Mr. Kelly, and Ms. Bettman voting no. Mr. Klein reviewed proposed amendments to Section 2.095, dealing with the private cause of action. He recommended that whoever prevailed between neighbor and claimant would receive attorney fees. Mr. Papd, seconded by Mr. Kelly, moved to adopt the text reviewed by Mr. Klein. Mr. Papd supported the text as fair. The amendment to the motion passed, 7:1; Ms. Taylor voting no. Mr. Poling referred to Section 2.085(2) and asked if that included any elected official or should it be redefined as any elected ~City" official. Mr. Klein interpreted it as a City official because the manager's recommendation was being forwarded to the City Council. He did not object to the amendment, however. Mr. Papd, seconded by Mr. Papd, moved to amend the section with the word ~City." The motion passed unanimously, 8:0. Ms. Nathanson said that the council received testimony expressing frustration that it was taking action to move forward on an ordinance and process. She said that adopting the ordinance was not an end run around the measure, but a way to implement it on a local level through the City of Eugene. Every city would have to address the measure in some way, and Eugene was just trying to set up fair procedures in advance of the measure's effective date. She thought it was important for the council to act, and was the responsible thing to do. Responding to a question from Mr. Poling, Mr. Klein said the measure was not specific to the actual costs incurred by the City. There would be a cost of preparing materials for council meetings, for example. He did not include his time, the council's time, or the manager's time at council meetings because they would be there anyway. Mr. Papd was prepared to act on the ordinance at this point. He agreed with the remarks made by Ms. Nathanson. Mr. Meisner indicated support for the main motion. He thanked legal counsel for all the work it had done in preparing the City to address the ramifications of Ballot Measure 37 in what he believed was a wise way. He hoped that the measure would not be as difficult for the City to address as it would be for rural Lane County. He did not expect the same types of problems. Mr. Meisner recalled the amount of time spent MINUTES--Eugene City Council November 24, 2004 Page 8 Work Session addressing the anticipated impact of Year 2000, and hoped the impact of the measure would be similar to that event, which did not turn out to be much. City Manager Taylor believed the ordinance was the responsible response to Ballot Measure 37. He anticipated the council would revisit the ordinance in the future, and that the City would continue to challenge the legislature and courts to provide clarity about the measure. Ms. Bettman wished all those present a Happy Thanksgiving, saying that the council had many things to be thankful for, but Ballot Measure 37 was not one of them. The motion passed unanimously, 8:0. The meeting adjourned at 1:20 p.m. Respectfully submitted, Dennis M. Taylor City Manager (Recorded by Kimberly Young) MINUTES--Eugene City Council November 24, 2004 Page 9 Work Session