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HomeMy WebLinkAboutItem 3: Measure 37 Claim (Wiper) ECC UGENE ITY OUNCIL AIS GENDA TEM UMMARY Public Hearing: Charles Wiper, Inc. Measure 37 Claim (M37 06-4) Meeting Date: January 28, 2008 Agenda Item Number: 3 Department: Planning and Development Staff Contact: Gabe Flock www.eugene-or.gov Contact Telephone Number: 541/682-5697 ISSUE STATEMENT This is a public hearing on a Measure 37 claim submitted by Charles Wiper, Inc. (Claimant) for property located at 3900 Willamette Street (Rest-Haven Memorial Park). This public hearing, and the proposed th action scheduled for February 11, is being held as a result of a December 26, 2007 order of the Lane County Circuit Court requiring the council to act on Claimant’s Measure 37 claim by February 11, 2008. BACKGROUND On December 1, 2006, Claimant filed a Measure 37 claim. As detailed in the attached report, Claimant has identified, as regulations reducing the value of its property, Eugene Code Chapters 6 and 9, the Eugene Springfield Metropolitan Area General Plan (Metro Plan), all relevant refinement plans, all relevant studies and reports, all implementing regulations and standards, and all restrictions and conditions included in the Conditional Use Permit currently applicable to the subject property. Several Measure 37 claims, including this one, were scheduled for a public hearing before council in May 2007. Shortly before the date of that hearing, the Legislature both amended Measure 37 to extend the time for acting on Measure 37 claims, and referred to the voters a measure to revise Measure 37. That referral – Measure 49 – was approved by the voters in November 2007, and became effective on December 6, 2007. However, on December 26, 2007, the Lane County Circuit Court entered an order requiring the City Council to adopt a resolution approving or denying Claimant’s Measure 37 claim, and to do so by February 11, 2008, based on Measure 37 as it existed on May 30, 2007 (i.e., pre-Measure 49). The City Manager is recommending that the claim should be denied. This recommendation is based on several factors, which are described in more detail in the attached report and recommendation from the City Manager. The major factors include the following. First, many of the regulations that are the subject of the claim are not “land use regulations” as that phrase was defined in Measure 37. Second, to the extent the claim identified “land use regulations” that met Measure 37’s definition, the claim failed to show either (a) that following the passage of Measure 37, the City has enforced those regulations against the subject property; and/or (b) that the regulations both restrict the use and reduce the value of the subject property. Third, the Claimant is legally bound by the terms of a Conditional Use Permit which restricts the use of the subject property independent of the City’s land use code. Finally, the owner voluntarily dedicated the property to cemetery use and state statutes, which were not included in the claim, prohibit the use of property dedicated for cemetery use for anything other than cemetery use. F:\CMO\2008 Council Agendas\M080128\S0801283.DOC A copy of the Measure 37 claim, along with other documents and information related to the issues in the claim, are contained in a notebook that has been placed in the Council Office. A copy of those materials is also available for public inspection by contacting Gabe Flock, Senior Planner, at 682-5697. RELATED CITY POLICIES Ordinance No. 20331, concerning real property compensation, is related to this claim. COUNCIL OPTIONS This is scheduled for a public hearing only. Following the public hearing, the council can ask questions th which staff and the city attorney will address in writing for the February 11 council meeting when action is scheduled. CITY MANAGER’S RECOMMENDATION The attached report recommends denial of the claim. However, this is scheduled only for public hearing. SUGGESTED MOTION No suggested motion at this time. This item is for scheduled public hearing only. ATTACHMENTS A. City Manager’s Report and Recommendation B. Correspondence related to this Measure 37 claim FOR MORE INFORMATION Staff Contact: Gabe Flock Telephone: 541/682-5697 E-mail: gabriel.flock@ci.eugene.or.us F:\CMO\2008 Council Agendas\M080128\S0801283.DOC BALLOT MEASURE 37 (CHAPTER 1, OREGON LAWS 2005; ORS 197.352) CLAIM FOR COMPENSATION CITY OF EUGENE REPORT AND RECOMMENDATION OF THE CITY MANAGER NAME OF CLAIMANT: Charles Wiper, Inc. MAILING ADDRESS: Rohn Roberts and Micheal Reeder Arnold Gallagher Saydack Percell Roberts & Potter PC 800 Willamette Street, Suite 800 Eugene, Oregon 97401 PROPERTY IDENTIFICATION: Assessor’s Map 18-03-18-00, Tax Lot 300 I. SUMMARY OF CLAIM Charles Wiper, Inc. (Claimant) submitted a claim under ORS 197.352 (Ballot Measure 37 (2004)) for compensation for the alleged reduction in fair market value to the property identified on Assessor’s Map 18-03-18-00, as Tax Lot 300. The property consists of approximately 71.6 acres, 20.5 of which are developed for cemetery purposes and known as Rest-Haven Memorial Park (Rest-Haven). The remainder of the subject property is vacant. Claimant seeks waiver of any and all restrictive land use regulations, including: Eugene Code Chapters 6 and 9; the Eugene-Springfield Metropolitan Area General Plan (Metro Plan); all relevant refinement plans, such as the South Hills Study, the TransPlan, and the Eugene- Springfield Metropolitan Area Public Facilities and Services Plan; all relevant land use policies, such as the Housing Dispersal Policy; all relevant studies and reports, such as various Goal 5 studies, the Eugene-Springfield Metropolitan Area Residential Land and Housing Study and the Eugene-Springfield Metropolitan Area Public Facilities Plan Technical Background Report; all implementing regulations and standards, such as the Stormwater Manual; and all restrictions and conditions included in the Conditional Use Permit (CUP) currently applicable to the subject property. Claimant does not identify the specific provisions within these Code chapters, plans or the applicable CUP that give rise to its claim. Claimant alleges that the value of its real property has been diminished by $3,520,000 as the result of application of restrictive land use regulations to the property by the City of Eugene. Claimant contends that $3,270,000 of the total claim is the result of diminution in value of the vacant portion of the property. Claimant also alleges that as a result of the provisions of the CUP currently applicable to the subject property, Claimant has spent over $250,000 in professional services to “obtain land use approvals for cemetery uses on the property.” Claimant believes that these types of expenses will continue as long as the City continues to enforce land use Page 1 of 7 regulations currently applicable to the subject property. Claimant anticipates that a purchaser would necessarily include such costs in the purchase price for the portion of the subject property devoted to cemetery uses. Therefore, Claimant alleges that these costs are “directly attributable to the land use regulations enacted and enforced since the Claimant acquired the property in 1929.” II. BACKGROUND Claimant acquired the subject property in 1929. At the time of acquisition the subject property was located outside Eugene city limits and no county zoning applied to the property. In May of 1929, Claimant dedicated the subject property to the public for cemetery uses. In 1966 the property was annexed to the City. Claimant applied to the City for a conditional use permit, and in August of 1995, the City approved a Conditional Use Permit (CUP) creating a master development plan for Rest-Haven Memorial Park. In October of 1998, the City and Charles Wiper III signed a CUP Agreement, binding the subject property to the uses outlined in Claimant’s CUP. In 1999 and 2001, the City conditionally approved two tree removal permits for the subject property. In 2002, the City rejected Claimant’s application for a Controlled Income and Rental Housing Project (CIR-CUP). Claimant appealed the City’s decision to the Land Use Board of Appeals, (LUBA) which remanded the application back to the City with instructions to process the application and render a decision. At Claimant’s request, the City did not process the CIR-CUP application. In 2003, the City denied Claimant’s application to modify the existing CUP to excise a portion of the subject property from the CUP master plan. In 2005, the City approved tree removal permit for the property, and also in 2005, the City applied the provisions of the /WR Water Resources Conservation Overlay Zone to the subject property. The claim provides an idea of how Claimant would like to develop its property. Claimant describes for the site: “cemetery and cemetery-related uses (such as, but not limited to, open lawn cemetery use, mausolea, columbaria, crematorium, headstones, maintenance structures and facilities, soil reclamation areas, chapels, parking areas, and all other funeral, cemetery and accessory uses), residential uses, including, but not limited to single-family residential (up to 5 units per acre), multi-family residential, townhomes, rowhouses, assisted living residential facilities and controlled income and rent housing (“CIR”), and various commercial uses, such as, but not limited to, supermarkets, post offices, office buildings, retail, banking, and restaurant uses.” Several Measure 37 claims, including this one, were scheduled for a public hearing before Council in May 2007. Shortly before the date of that hearing, the Legislature both amended Measure 37 to extend the time for acting on Measure 37 claims, and referred to the voters a measure to revise Measure 37. That referral – Measure 49 – was approved by the voters in November 2007, and became effective on December 6, 2007. However, on December 26, 2007, the Lane County Circuit Court entered an order requiring the City Council to adopt a resolution approving or denying Claimant’s Measure 37 claim, and to do so based on Measure 37 as it existed on May 30, 2007 (i.e., pre-Measure 49). Page 2 of 7 III. SUMMARY OF CITY MANAGER’S RECOMMENDATION Based on the analysis set forth in section IV below, the City Manager recommends denial of the claim. 1 Measure 37 generally granted a property owner the right to compensation (or waiver at the option of the government) for reduction in the value of their property caused by a land use regulation in existence as of the effective date of Measure 37 (December 2, 2004) as long as five substantive requirements were met. First, the regulation challenged must have been a “land use regulation” as that term was defined by Measure 37. Second, the public entity against which the claim was made must have enforced the regulation in some manner following the effective date of Measure 37. Third, the regulation must have restricted the use of private property. Fourth, the effect of the regulation must have been to cause a reduction in the fair market value of the property. Fifth, the regulation must not have fallen within one of Measure 37’s exemptions. As discussed below, Claimant identified, as regulations reducing the value of its property, the entire land use code, the Metro Plan, all relevant refinement plans, all relevant studies and reports, all implementing regulations and standards, and all restrictions and conditions included in the CUP currently applicable to the subject property. Claimant has not, however, identified which of these regulations are “land use regulations” as that term was defined by Measure 37. To the extent that Claimant’s claim was based on those provisions of the Eugene Code or other regulations which did not constitute “land use regulations” under Measure 37, the claim lacked merit. To the extent Claimant identified “land use regulations,” it failed to show that, following the effective date of Measure 37, such regulations had been enforced against Claimant’s property. Additionally, some of the regulations that are the subject of the claim fell within one or more of Measure 37’s exemptions, including the exemptions for regulations prohibiting certain public nuisances and regulations adopted to protect the public health and safety. Finally, Claimant is legally bound by a CUP, and by the Claimant’s dedication of the property for cemetery use, both of which restrict the use of the subject property independent of the City’s land use code. For these reasons, the City Manager recommends denial of the claim. IV. ANALYSIS OF CLAIM A. Ownership. Ballot Measure 37 provided for payment of compensation or relief from (waiver of) specific regulations for “owners” as that term was defined by the Measure. Ballot Measure 37, Section 11(C) defined “owner” as “the present owner of the property, or any interest therein.” It appears that Claimant is the owner of the subject property for purposes of Measure 37. Based on the information submitted by Claimant (warranty deeds 97741, 98026, 98027 and 98028) and information available in the Lane County Regional Land Information Database 1 In light of the court’s December 26, 2007, order requiring the Council to act on the claim based on Measure 37 as it existed on May 30, 2007, this report describes Measure 37’s provisions as they existed before the revisions effected by Measure 49. Many of those provisions, however, were changed by Measure 49, and therefore are not the law in effect today. Page 3 of 7 (RLID), the City Manager concludes that the subject property was acquired by Charles Wiper, Inc., through four deeds filed with Lane County on May 2 and 13, 1929. The subject property is currently owned by Claimant. B. “Land use regulations.” Measure 37 required compensation (or waiver at the option of the government) only for those regulations which constituted “land use regulations” as that term was defined by Measure 37. Measure 37 and other state land use laws defined the phrase “land use regulations” differently. Measure 37 defined the term “land use regulation,” with respect to local governments, as “local government comprehensive plans, zoning ordinances, land division ordinances and transportation ordinances.” In contrast, ORS 197.015(11) defined the term “land use regulation” as “any local government zoning ordinance, land division ordinance adopted under ORS 92.044 or 92.046 or similar general ordinance establishing standards for implementing a comprehensive plan.” This difference between Measure 37’s definition and the prior statutory definition – i.e., the omission in Measure 37 of the language underlined above – was significant. Both Measure 37 and other state law included zoning ordinances and land division ordinances within the scope of the term “land use regulation.” Measure 37, however, did not include the language “or similar general ordinance establishing standards for implementing a comprehensive plan” in its definition of “land use regulation.” Because Measure 37 omitted the “or similar general ordinance” language, a proper interpretation of Measure 37 limited the scope of the term “land use regulation” to zoning ordinances, land division ordinances, comprehensive plan provisions and transportation ordinances. As noted above, Claimant included in its request for waiver: all of Chapters 6 and 9 of the Eugene Code; the Metro Plan and various other land use policies, studies and reports; and all implementing regulations and standards, including provisions of the CUP. Measure 37 defined “land use regulation” to include comprehensive plans, and consequently, to the extent that Claimant’s claim was based on the Metro Plan, the claim involved a land use regulation. Measure 37, however, did not define “land use regulation” to include all land use code provisions, but instead, only “zoning ordinances,” “land division ordinances” and “transportation ordinances.” Accordingly, the regulations contained in Chapters 6 and 9 of the Eugene Code which are not zoning ordinances, land division ordinances or transportation ordinances do not constitute “land use regulations” as defined by Measure 37. To the extent that Claimant’s claim is based on those provisions of the Eugene Code or other regulations or provisions which did not constitute land use regulations under Measure 37, the claim lacked merit. C.Enactment or Enforcement. Measure 37 provided that a property owner had a valid claim under the measure if a newenforces public entity “enacts or enforces a land use regulation or a land use regulation enacted prior to the effective date ” of Measure 37. With very few exceptions (one of them being the City’s enactment of the /WR Water Resources Conservation Overlay Zone), all of the provisions of the Metro Plan and Chapters 6 and 9 of the Eugene Code were enacted prior to the effective date of Measure 37. The mere adoption or existence of those provisions was not enough to give rise to a Measure 37 claim; for the claim to have been valid, the City must have Page 4 of 7 enforced the complained of land use regulations after the effective date of Measure 37 (December 2, 2004). If a regulation was enacted after the effective date of Measure 37, it is a “new” regulation and no enforcement by the City was necessary for a valid claim. In 2005, after the effective date of Measure 37, the City enacted the provisions of the /WR Water Resources Conservation Overlay Zone and applied it to the subject property. Ordinance No. 20351, enacting EC 9.4900 et seq, the /WR Water Resources Conservation Overlay Zone is a zoning ordinance and therefore constituted a “land use regulation” under Measure 37. Based on its date of passage, (after Measure 37’s effective date) Ordinance No. 20351 was a “new” land use regulation. The other regulations at issue were not “new regulations” because they were enacted before the effective date of Measure 37. Therefore, the claim was only valid as to a particular regulation (other than the /WR Water Resources Conservation Overlay Zone) if, following the passage of Measure 37, the City had enforced that regulation on the subject property. Following the effective date of Measure 37, the City had not enforced any land use regulations against the subject property. D. Restriction on use, reduction in value. A “land use regulation” gave rise to a Measure 37 claim only if the regulation both restricted the use and reduced the fair market value of private property. Claimant did not identify which of the provisions of Chapters 6 and 9 of the Eugene Code, the Metro Plan, refinement plans, relevant studies and reports, implementing regulations and standards, or restrictions and conditions included in the CUP applicable to the property, “restrict the use” and “reduce the value” of the subject property. As noted above, to qualify as a both valid claim, a challenged land use regulation must have restricted the use and reduced the value of Claimant’s property. With regard to the restriction on use requirement, Claimant failed to acknowledge that it was party to a legally binding Conditional Use Permit (CUP) agreement that, even in the absence of the regulations that are the subject of its claim, independently restricts the use of the subject property. On October 27, 1998, Charles Wiper III voluntarily signed an agreement formalizing the City’s approval of a master development plan (CUP) for the subject property. The agreement in strict compliance with the plans as submitted and binds Claimant to develop the project approved .As part of that CUP agreement, Mr. Wiper agreed that “All construction, development, improvement, landscaping, lighting, and design or construction and continuing maintenance activities in connection with this development are to be in compliance with this Agreement and the documents attached as exhibits.” The Agreement provides further that Mr. Wiper’s failure to develop in accordance with the Agreement shall constitute a breach of the Agreement, which can give rise to a lawsuit by the City for specific performance. The Agreement is “binding upon the heirs, executors, administrators, and assigns of both parties and is a condition and covenant running with the land and binding upon the above-described areas of real property.” Page 5 of 7 Claimant is legally bound to undertake development consistent with its approved CUP. Claimant voluntarily entered into that agreement. Because the CUP agreement runs with the land, the obligation to undertake development of the subject property consistent with the approved CUP will continue to exist even if the City waived its entire land use code. Consequently, it is not the City’s regulations that restrict Claimant’s use of the property covered by the CUP; instead, it is the CUP itself. The “land use regulations” that are the subject of the claim are not creating a restriction on use of the subject property. To the extent that there is any reduction in the value of the subject property, the reduction is caused by the development plans that Claimant submitted to the City, which the City approved, and that were then formalized by the CUP agreement that Claimant signed. Claimant also failed to acknowledge its dedication of the subject property to the public for cemetery uses. Until the cemetery dedication is removed, the dedication itself creates a restriction on the use of the subject property, independent of the City’s land use code. State statutes control the dedication of property for cemetery use; ORS 97.330 and 97.440 require that property that has been dedicated to cemetery purposes shall be held, occupied and used exclusively for cemetery purposes. Claimant has not included those state statutes in its claim, and the City could not waive the requirements of state statutes anyway. To the extent that restriction of the subject property to cemetery uses decreases the value of the property, that reduction in value is the result of Claimant’s dedication of the property to cemetery use, rather than the City’s land use code. With respect to the “new” land use regulation – the /WR Water Resources Conservation Overlay Zone – Claimant does not provide an accounting to show the effect of the overlay zone on the property’s value. There is no evidence that this natural resource protection reduced the value of the property. The overlay zone restricted uses on only a portion of the property, but did not restrict the overall use of the property. Therefore, it is not clear that the /WR Water Resources Conservation Overlay Zone restricted the use of the property in the way anticipated by Measure 37, or that it reduced the overall value of the property. Claimant alleges that the land use regulations identified in the claim collectively have caused a diminution in value of the subject property in the amount of $3,520,000. As noted above, Claimant included in its claim a number of regulations that are not “land use regulations” for purposes of Measure 37. Of those that did qualify, it is not clear from the claim which, if any, provisions of the Eugene Code, the Metro Plan, or any of the other challenged regulations “restrict the use” and “reduce the value” of the subject property. To the extent the challenged both regulations did not reduce the value and restrict the use of the subject property, the claim lacked merit. E. Exemptions. A Measure 37 claim was invalid to the extent that one or more of the claim’s challenged regulations fell within one of the following exemptions under the Measure: 1) regulations adopted before the claimant acquired the property; 2) regulations adopted to protect the public health and safety; 3) regulations adopted to prevent nuisances; or 4) regulations adopted to comply with federal law. At the time Claimant acquired the subject property, there were no land Page 6 of 7 use regulations applicable to the property, so Measure 37’s exemption for regulations adopted before the owner acquired the property did not apply to this claim. However, to the extent Claimant sought a waiver of land use regulations that fell under any of the other Measure 37 exemptions, the claim lacked merit. V. MEASURE 49 As noted in the Background section above, the Lane County Circuit Court ordered the City Council to act on this claim based on Measure 37 as it existed on May 30, 2007. In other words, the court ordered the Council to ignore the revisions made to Measure 37 when the voters approved Measure 49 in November 2007. For that reason, the analysis, findings and conclusions contained in this report and recommendation are based on Measure 37 as it existed before the changes effected by Measure 49. Measure 49, however, did take effect on December 6, 2007. Section 10 of that Measure requires the City to follow a particular process for Measure 37 claims that had not been decided by June 28, 2007. The City intends to follow that process with respect to the application of Measure 49 to this claim; consistent with the court’s December 26, 2007 order, no part of this recommendation is intended to rely on or apply Measure 49. Instead, this recommendation is based entirely on Measure 37 as it existed on May 30, 2007. VI. CONCLUSION AND RECOMMENDATION Based on the analysis and discussion in sections I – IV above, the City Manager recommends denial of the claim. This claim has been scheduled for a public hearing on January 28, 2008. Page 7 of 7