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HomeMy WebLinkAboutItem 1: Ordinance Authorizing Use of Eminent Domain to Acquire Property Near Amazon Creek Headwaters ECC UGENE ITY OUNCIL AIS GENDA TEM UMMARY Public Hearing: An Ordinance Authorizing the Institution of Proceedings in Eminent Domain for the Acquisition by Condemnation of Property for Park and Open Space Land Near the Amazon Creek Headwaters in South Eugene; and Declaring an Immediate Effective Date Meeting Date: May 21, 2007 Agenda Item Number: 1 Department: Public Works Staff Contact: Johnny Medlin www.eugene-or.gov Contact Telephone Number: [682-4930] ISSUE STATEMENT This public hearing is for the City Council to receive testimony in regard to its consideration of an ordinance authorizing the use of eminent domain on two properties near the Amazon Creek headwaters in South Eugene. The ordinance is included as Attachment A and includes Exhibit A and B. A memorandum from the City Attorney describing condemnation procedures and statutory authorization to acquire property for city parks is included as Attachment B. Please note: An immediate effective date is requested with this ordinance. An immediate effective date requires a 2/3 majority or six (6) affirmative votes from the council to enact. Ordinances without an immediate effective date do not take effect for 30 days. BACKGROUND The City Council on April 18, 2007, instructed staff to prepare and take to Public Hearing an ordinance authorizing the use of eminent domain on two parcels in South Eugene. These parcels have been the topic of previous discussion under the names of Green property or Green Valley Glen Planned Unit Development (PUD), and the Beverly property or West Creek PUD, South Park PUD, or Deerbrook PUD. Current acquisition status on both of these properties is that past purchase offers for a part or all of these properties have been made and declined. Staff based acquisition of these properties on making purchase offers at or near current appraised raw land value. The property owner’s view has been that in order to persuade them to sell, the City would need to pay significantly higher than the currently appraised value to compensate for the speculative developable value inherent in the properties. It has been the staff opinion that both of these parcels have the potential for some level of development. Since the specific level of development possible on these parcels (low or high) is unknown and remains in dispute, so does any value based on development potential. The recent PUD applications involving these properties have not been successful. While development may be difficult, the property owners have indicated they believe they will eventually be able to sufficiently meet PUD criteria, allowing them a significant level of development. L:\CMO\2007 Council Agendas\M070521\S0705211.DOC The specific level of development allowable on these properties is in dispute and the value of these properties is dependant on what level of development is ultimately allowable. Appraisals have not yet been performed. Consequently, it is not possible to identify the cost to the City for acquiring these parcels. Depending on the extent to which the properties are developable, the total fair market value of these properties likely falls somewhere between $1 million and $14 million. If the council would like to discuss this valuation issue, doing so in an executive session would be recommended. A memo from the Planning and Development Department providing information regarding these properties’ current status of zoning and land use is included as Attachment C. A memo from the Parks and Open Space Division providing information regarding the “park values” represented by these properties is included as Attachment D. RELATED CITY POLICIES The Parks, Recreation and Open Space (PROS) Comprehensive Plan was adopted by the City ? Council on February 13, 2006. The PROS Project and Priority Plan was adopted by the City Council on May 22, 2006. ? A Parks and Open Space Bond Measure was passed by Eugene voters on November 7, 2006. ? COUNCIL OPTIONS a. Take action as scheduled at the June 25 City Council Meeting. b.Take no action. Allow negotiations to continue while specific property issues are resolved. c.Direct the City Manager to schedule a work or executive session for additional discussion. d.Direct staff to provide additional information as specified. CITY MANAGER’S RECOMMENDATION None; this is a public hearing only. SUGGESTED MOTION None; this is a public hearing only. ATTACHMENTS A.Proposed Ordinance (includes Exhibit A and B) B.Memo dated May 9, 2007, from the City Attorney titled: An Overview of Condemnation Procedures and Statutory Authorization to Acquire Property for City Parks. C.Memo dated May 3, 2007, from Planning and Development Department regarding the zoning, history of land use applications, and conditions of the Green and Beverly properties. D.Memo dated May 4, 2007, from the Parks and Open Space Division providing information regarding the “park values” represented by these properties E.Vicinity map showing location of Deerbrook PUD (Beverly) and Green Valley Glen PUD (Green) FOR MORE INFORMATION Staff Contact: Johnny Medlin Telephone: 682-4930 Staff E-Mail: johnny.r.medlin@ci.eugene.or.us L:\CMO\2007 Council Agendas\M070521\S0705211.DOC ATTACHMENT A ORDINANCE NO. ___________ AN ORDINANCE AUTHORIZING THE INSTITUTION OF PROCEEDINGS IN EMINENT DOMAIN FOR THE ACQUISITION BY CONDEMNATION OF PROPERTY FOR PARK AND OPEN SPACE LAND NEAR THE AMAZON CREEK HEADWATERS IN SOUTH EUGENE; AND DECLARING AN IMMEDIATE EFFECTIVE DATE. The City Council of the City of Eugene finds that: A. The City Council has authority under provisions of the City Charter and applicable state law to institute proceedings in eminent domain for the acquisition by condemnation of private property within and without its corporate limits for the public purpose of public parks, preservation of land for open space, and expansion of the Ridgeline Trail system. B. Acquisition of land in the south Eugene area for parks, preservation of open space and expansion of the Ridgeline Trail system has long been a priority of the City and the affected neighborhood organization. C. The importance of preservation of land for parks and open space has also been reflected in the passage by the electors of the City of Parks and Open Space bonds in 1998 and 2006. D. The policies and goals of the City and the directive of the electors in approving the 1998 and 2006 Parks and Open Space bonds can best be met by acquisition of the 26 acre parcel of real property located south of West Amazon Drive’s terminus and the 39 acre parcel of real property located between Dillard Road and Nectar Way, which are more particularly described on Exhibits A and B hereto. E. The public good realized from the acquisition far outweighs any damage which the property owners might sustain, particularly in light of the Citys obligation to provide just = compensation to the affected property owners. Now, therefore, THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS: Section 1. Based upon the above findings, which are incorporated herein and adopted, the City Council of the City of Eugene does hereby find, declare, and determine it necessary to acquire certain ownership interests to the parcels of real property located south of West Amazon Drive’s terminus and between Dillard Road and Nectar Way, and more particularly described on Ordinance - 1 Exhibits A and B attached hereto and incorporated herein by reference in order to acquire land necessary for parks, preservation of open space, and expansion of the Ridgeline Trail system. Section 2. The City Council does hereby direct that the City Manager or the Managers = designee shall undertake negotiations with affected property owners to acquire the described property interests. No less than 40 days prior to filing any action for condemnation of those property interests described in Section 1, the City Manager or designee shall make a written offer or offers to pay the owners of the property or persons having an interest therein a stated amount of compensation for the property interests and for any compensable damages to the remaining property, if any. If the written offer is not accepted within the time specified in the offer, the City Manager or designee shall institute proceedings in eminent domain for the condemnation of the real property interests described in Section 1. Section 3. The City Council does hereby declare that the acquisition of the fee title to the real property described on Exhibits A and B hereto is for a public purpose, is necessary for the public welfare, is the most compatible with the greatest public good and the least private injury, and is authorized under the laws of the State of Oregon and the Charter, Ordinances and policies of the City of Eugene. Section 4. The City Council further declares that the real property interests described in Section 1 shall be used by the City of Eugene for public purposes at the earliest possible date and, in any event, no later than ten years from the date this Ordinance is adopted by the City Council and approved by the Mayor. Section 5. In order to serve the important public purpose of securing park land in a timely manner, it is necessary for this ordinance to have immediate effect. This Ordinance shall become effective upon its passage by the City Council and approval by the Mayor, retention by the Mayor for more than ten days, or readoption over a Mayoral veto by two-thirds of all members of the City Council. Passed by the City Council this Approved by the Mayor this ____ day of ___________, 2007 ____ day of _________, 2007 _______________________________ ________________________________ City Recorder Mayor Ordinance - 2 ATTACHMENT B CITY OF EUGENE INTER-DEPARTMENTAL MEMORANDUM CITY ATTORNEY – CIVIL DEPARTMENT To: Mayor and City Council Date: May 11, 2007 Subject: Overview of Condemnation Procedures Statutory Authorization to Acquire Property for City Parks and Below is a summary of the Oregon condemnation process and the statutory authority for acquiring property specifically for city parks. Basic Steps in a Condemnation Action ? Identify property needed for public project ? Survey property to obtain legal description of property ? Perform title search to identify all interests in property ? Perform environmental testing on property ? Adopt ordinance authorizing condemnation and describing need and purpose ? Appraise the property ? Appraisal review ? Negotiate with the property owner ? Make written offer to property owner and provide appraisal ? File condemnation action ? Quick take (optional) ? Trial ? Just compensation award ? Provide relocation assistance The Power of Eminent Domain The power of eminent domain is the power inherent in a sovereign state to take property within its jurisdiction for a public use or benefit. The state has delegated the power of eminent domain to different entities including local governments and urban renewal districts. Governments exercise the power of eminent domain through condemnation proceedings. Article I, section 18, of the Oregon Constitution requires “just compensation” for the taking of private property for public use. ORS chapter 35 provides the procedures for condemnation actions and the process for determining just compensation. Mayor and City Council May 11, 2007 Page 2 Survey and Testing The condemner may conduct surveys or other testing of the property prior to filing a condemnation action to determine the appropriateness of the property for the project. ORS 35.220. The land owner must receive notice and must consent to the entry upon the property, unless the condemner receives a court order allowing the entry after consent is refused. ORS 35.220. Resolution or Ordinance Prior to initiating a condemnation action, the condemner must issue a resolution or ordinance declaring the necessity of the property for a project which the condemner has the authority to carry out. ORS 35.235. Appraisal Prior to submitting a written offer to the property owner, the condemner must have the property appraised, unless it determines that just compensation is less than $20,000. ORS 35.346(2). The condemner must give the property owner 15 days notice prior to any appraisal inspection. ORS 35.346(3). Negotiations The condemner must attempt to agree with the property owner on the appropriate amount of compensation prior to filing a condemnation proceeding. ORS 35.235(1). Written Offer At least 40 days before filing a condemnation complaint, the condemner must make a written offer to the property owner to purchase the property, or an interest in the property required for the project. ORS 35.346(1). The written offer must be accompanied by the written appraisal the condemner is relying on in making the offer, unless the value is less than $20,000. ORS 35.346(2). Action If the condemner and property owner cannot agree, then the condemner may file a condemnation action in circuit court. ORS 35.245(1). If the amount offered by the condemner is $20,000 or less, then the property owner may elect to have the compensation value determined by court-sponsored binding arbitration. ORS 35.346(6). If the value offered by the condemner is between $20,000 and $50,000, then the property owner may elect to have compensation determined by court-sponsored non-binding arbitration. ORS 35.346(6). Most of the time, property owners choose to have the amount of just compensation determined by a jury. Mayor and City Council May 11, 2007 Page 3 Immediate Possession If a condemner believes possession of the property is necessary prior to the completion of the condemnation proceedings, it may give notice to the property owner of its intent to take immediate possession. ORS 35.352(1). If the owner does not object within 10 days of service of the notice of immediate possession, the condemner may deposit the amount it alleges as just compensation with the court and obtain an order granting it possession of the property. ORS 35.352(3). If the owner files a timely objection, the court will hold a hearing on the owner’s objections. ORS 35.352(5). The only objections allowed at this stage of the proceeding are (1) whether the condemnation is legal and (2) whether the condemner has acted in bad faith, engaged in fraud, or engaged in an abuse of discretion. ORS 35.352(4). If immediate possession is granted, the property owner may withdraw the funds from the court without waiving any arguments regarding valuation. ORS 35.285. Attorney Fees The property owner can recover attorney fees and reasonable expenses (e.g., expert witnesses) if the amount of the just compensation awarded at trial exceeds the initial offer made by the condemner. ORS 35.346(7), as modified by Measure 39. The property owner is also entitled to attorney fees and reasonable expenses if the condemner abandons the condemnation action or if the court finds that the first written offer was not a good faith offer based on what the condemner reasonably believed just compensation to be. ORS 35.335(1); ORS 35.346(7). Appeal Either party may appeal, but an appeal will not prevent the condemner from taking possession of the property. ORS 35.355. Repurchase Rights Under certain circumstances, a property owner may have a right to repurchase the property from the condemner if the condemner fails to use the property for the public use for which it was condemned. ORS 35.385. Relocation Assistance Relocation assistance is governed by ORS 35.500 - .530 which incorporates certain requirements of federal law in 42 USC §§ 4651-4652. If the project is receiving federal financial assistance, federal law controls the provision of relocation assistance. ORS 35.530. When a person or business is displaced through condemnation, the condemner must provide certain relocation assistance and relocation payments to the displaced person or business. ORS 35.510. Unless an emergency exists, a person or business cannot be required to move from the condemned property without first receiving notice at least 90 days prior to the date by which the move is required. ORS 35.505(2). A requirement to move must also be preceded by notice of Mayor and City Council May 11, 2007 Page 4 the costs and allowances to which the person may be entitled. ORS 35.505(2). In cases of urban renewal, governments shall make reasonable efforts to those displaced by the project to relocate those persons within the urban renewal area. ORS 35.505(1). Authority to Acquire Property for City Parks Oregon statutes provide specific authority for cities with populations over 5,000 to acquire property for parks. When city authorities pass an ordinance to do so, cities may acquire through the exercise of their eminent domain powers property within or outside city boundaries for public parks. ORS 226.320(1). Cities may acquire more property than they currently need for park lands. ORS 226.330. When it is determined that property in excess of that needed for parks has been acquired, the excess property may be sold with such restrictions as are needed to assure protection of the public parks, their environs, and “preservation of the view and appearance, light, air, health or usefulness” of the park property. ORS 226.350. The condemnation procedures applicable to acquisition of park property are the same procedures used for condemnations in general. ORS 226.380. HARRANG LONG GARY RUDNICK P.C. – CITY ATTORNEYS /s/ Jeffery J. Matthews Jeffery J. Matthews JJM:kdp ATTACHMENT C Planning & Development Planning City of Eugene th 99 West 10 Avenue M Eugene, Oregon 97401 EMORANDUM (541) 682-5377 (541) 682-5572 FAX www.eugene-or.gov Date: May 3, 2007 To: Johnny Medlin, Parks and Open Space Division Manager From: Alissa Hansen, Senior Planner Eugene Planning Division Subject: Green Property (Tax lot 101 of Assessor’s Map 18-03-20-00) Beverly Property (Tax lots 101, 200, 300, and 302 of Assessor’s Map 18-03-20-21) This memorandum provides responses to your questions regarding the zoning and history of these properties. 1. What is the current zoning of these properties? Are they included in our buildable lands inventory? Both properties are zoned R-1 Low Density Residential with /PD Planned Unit Development and /WR Water Resources Conservation overlays. Both properties are designated for low density residential use in the Metro Plan and are included in the documented supply of “buildable land” that is available for residential development as inventoried in the acknowledged 1999 Residential Lands Study. Both proprieties were designated low density residential in the Eugene-Springfield Metropolitan Area 1990 General Plan (1972). In 1978 the Green property was annexed into the City of Eugene and was concurrently rezoned from RA Outer Residential District and AGT Agricultural Grazing and Timber- Raising District to R-1/PD (City file AZ 77-7). The Beverly property was annexed to the City of Eugene in 1979 with a concurrent rezoning from AGT Agricultural Grazing and Timber-Raising District to R- 1/PD (City file AZ 79-8). The /WR Water Resources Conservation overlay was applied to both properties on January 1, 2006, due to the presence of Goal 5 inventoried streams (City file Z 05-8). 2. What is the history of land use applications on these properties? The Green property was granted tentative planned unit development (PUD) approval in 1979, at which time it was part of a larger tax lot and under different ownership. The approval expired before final approval was obtained. In 2005, Joe Green submitted a tentative PUD to create a 113-lot single-family residential subdivision with a private street system and common open space areas on 40 acres. This proposal, known as Green Valley Glen PUD (City File PDT 05-6), was denied by the Eugene Hearings Official on the basis of a procedural issue, on lack of sufficient geotechnical evidence and on the lack of sufficient evidence regarding emergency response. The applicant appealed the Hearings Official’s decision to the Planning Commission in February 2007, who voted to reverse the Hearings Official’s findings regarding the procedural and the emergency response issues. The Planning Commission voted to uphold the Hearings Official’s findings regarding the lack of sufficient geotechnical evidence, concluding 1 that soil borings were necessary to determine the feasibility of the proposed development. Prior to the signing of a final order on the denial by the Planning Commission, the applicant withdrew the application. Since then, the applicant has obtained the necessary erosion and NPDES permits to enter the property to conduct further soil tests. Three separate PUD applications have been submitted for the Beverly property. The first, known as West Creek PUD (City file PD 98-12), was a request for 21 residential lots, and only applied to Tax Lot 300 of the subject property. The application was withdrawn the day of the public hearing, and did not receive a favorable staff recommendation. The applicant then submitted property line adjustments (City files LA 99-46 and 99-47) in conjunction with the City’s acquisition of a portion (approximately 13 acres) of Tax Lot 101 of the subject property. South Park PUD (PD 00-2) was a proposal for tentative planned unit development of a 57-lot single- family residential subdivision. The Eugene Hearings Official denied this application due to lack of compliance with several tentative PUD criteria, including compliance with the South Hills Study, tree preservation and natural feature protection. On appeal, the Planning Commission upheld the Hearings Official’s denial of the application. The most recent PUD application for the Beverly property, known as Deerbrook PUD (City files PDT 06- 2) was a proposal for 91 dwellings on 26.5 acres. Following the release of the staff report recommending denial on the basis of a number of tentative PUD criteria, including compliance with the South Hills Study, tree preservation and natural feature protection, and prior to the public hearing before the Hearings Official, this application was withdrawn by the applicant. 3. Do the geological conditions on these sites render the properties un-buildable? No. Concerns regarding geologic conditions were a prominent issue in the Green Valley Glen PUD. While it was determined that this particular development application did not satisfy the geotechnical standards, this does not preclude the property owner from submitting a proposal with new evidence that meets these standards, nor do such concerns render this property un-buildable. The same is true for the Beverly property. It is important to stress that none of the information available on either property, in and of themselves, renders these sites un-buildable. In the context of the South Hills Study and the Eugene Code tentative PUD approval criteria, and understanding that the subject properties are designated and zoned for low-density residential development, an appropriate level of residential development is still possible on these properties. 4. Are there other site conditions or constraints that would preclude development of these properties? As with most South Hills PUD’s, there are a number of constraints and assets of a given site that need to be addressed as part of the development application process. The challenge is to create a project which appropriately balances these various interests. Such factors as natural resources, topography, circulation/access, infrastructure and many others all need to be addressed. While these sites may have certain challenges in achieving this appropriate balance, there are no circumstances which fundamentally prevent these sites from being developed for residential use. 2 ATTACHMENT D Public Works Parks and Open Space Division City of Eugene 1820 Roosevelt Boulevard M Eugene, Oregon 97402 EMORANDUM (541) 682-4800 (541) 682-4882 FAX www.eugene-or.gov/parks Date: May 4, 2007 To: Johnny, Medlin, Parks and Open Space Division Director From: Carolyn Weiss, Parks and Open Space Planning Manager Subject: Ridgeline Park System: Assessment of Potential Property Acquisitions City Council is considering using eminent domain to acquire two properties located along the headwaters of Amazon Creek. This memo is written to provide information from a “parks” perspective on the value of these two properties. The Beverly property consists of approximately 26 acres located south of Martin Street, between City owned parkland and right of way for West Amazon Drive. The property consists of a stream corridor, wetlands, and a fir forest. The Green property consists of approximately 40 acres along Dillard Road and south of existing Ridgeline Parkland. The property consists of steep terrain, headwater streams, wetlands, and a fir forest. Acquisition of these sites would be beneficial as natural areas for the values of water quality and wildlife habitat protection. Because Ridgeline Trail connectivity is already provided in this area, recreational trails values would not be significantly increased as a result of the acquisitions. Policy Direction The Parks, Recreation and Open Space Comprehensive Plan, Strategy I-25 on pg. 54, identifies willing sellers as the preferred acquisition approach. “I-25 Identify and pursue opportunities with willing sellers as the preferred approach when evaluating parkland and natural open space acquisition options. Consider willingness of seller as a key criterion when prioritizing acquisition opportunities.” Funding The Parks, Recreation and Open Space Project and Priority Plan calls for acquiring 50 additional acres of Amazon Creek Headwaters as a Priority 1 project. It assumed that property could be obtained at raw land values. The funding plan estimated an acquisition cost of $765,000 in 2004 with approximately 25% of the total coming from external funding partners (grants). It should be noted that leveraging the City’s funding for the acquisition of these properties may not be possible under an eminent domain scenario or if purchase offers exceed appraised value. The following chart identifies external funding sources typically utilized for natural area acquisition and limitations on the use of their funding. Eligible to Apply for Funding for Beverly Eligible with Use of Eligible if purchase price GRANT PROGRAM and Green Properties Eminent Domain exceeds appraised value YES NO NO USDF, Forest Legacy Program YES NO NO USFS, North American Wetlands Conservation Act YES YES NO Oregon State Parks, Local Government Grant Program YES NO NO Oregon Watershed Enhancement Board Summary The Beverly and Green properties represent an opportunity to obtain land that is adjacent to existing Ridgeline Parkland and has high natural resource values with respect to water quality and wildlife habitat. While these properties will not enhance the recreation values of the Ridgeline Trail by any substantial measure, both properties would make good additions to the City’s park system as natural areas if acquired at or near to a raw land value. 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