JOINT BOARD OF COMMISSIONERS'
AND LANE COUNTY PLANNING COMMISSION
December 6, 2000
Harris Hall Main Floor
Commissioner Peter Sorenson presided with Commissioner Bobby Green, Sr., Anna Morrison and Cindy Weeldreyer present. Bill Dwyer was excused. County Administrator Bill Van Vactor, County Counsel Teresa Wilson, Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.
Lane County Planning Commissioner Clay Myers called the meeting of the Lane County Planning Commission to order. Present: Juanita Kirkham, Mark Herbert, Don Clark, Clay Myers, Marion Esty and Chris Clemow.
1. PUBLIC HEARING
a. SECOND READING AND PUBLIC HEARING/Ordinance No. 9-00/In the Matter of Amending Chapter 2 of Lane Code to Add Provisions Establishing a Real Property Compensation Application Process Resulting from Voter Approval of Ballot Measure 7, and Declaring an Emergency.
Wilson reported that Measure 7 was passed by the voters on November 7 and under constitutional provision, is scheduled to take effect tomorrow. She added there had been litigation filed in Marion County Circuit Court by individuals against state officers and by cities and counties against state officers. She noted the judge in that case consolidated the two cases for the purpose of issuing a preliminary injunction. She read the preliminary injunction into the record. She noted that Lane County was not a party to the litigation and County Counsel believes it applies, but she requested that the Board proceed with the actions today. She added the ordinance would take effect when Measure 7 takes effect.
Steve Vorhes, Assistant County Counsel, stated he distributed a revision to the cover ordinance that would make these regulations applicable within the urban growth areas of the City of Eugene and Springfield until the Board takes action on the partner ordinance that would adopt the cities’ regulations for processing Measure 7 claims and apply them to that area.
He suggested, in the provisions of Chapter 2 of Lane Code, adding to subsection 2.70(2), the purpose section: “The provisions of Lane Code 2.700 through 2.770 shall only become operative when the provisions added to Article 1, Section 18 of the Oregon Constitution by Ballot Measure 7, November 2000, become effective, so that it is clear that these provisions do not become operative unless Measure 7 goes into effect.”
Vorhes reiterated that the effect of the judge’s order in Marion County appeared to make Measure 7 not yet effective. He said the language would leave the provisions operative only if that measure goes into effect. He noted it was a bare minimum process and did not attempt to articulate the meaning or definition of terms in the measure--that will be determined as a claim works its way though the process. He said the process calls for an application to be filed by the owner of the property (who is the subject of the claim) and information to be submitted to the County Administrator. He said that gives the County Administrator a ten-day period to make sure the information is there and gives the County Administrator authority to waive requirements.
Vorhes said once the application is submitted, a fee is provided for and the Board would have to consider that application. He said the complete application would trigger the process of reviewing and determining whether there is merit to the claim. He said the review is done by the County Administrator with the tests of Measure 7, whether the County had adopted or enforced a regulation that restricts the use of private real property, whether the restriction on use had the effect of reducing the value of the property upon which the restriction is imposed and whether the challenged regulation was adopted or applied after the current owner of the property became the owner and/or whether the challenged regulation is an exempt regulation (or not) under Ballot Measure 7. He said if there seems to be initial substance to meet the tests with Measure 7, the County Administrator is to prepare a report and send it to the Board for consideration. He noted at that point a notice would be sent out to the applicant, other owners of property in the area, owners of record of properties surrounding the areas, neighborhood groups, community organizations or anyone else the County Administrator thinks should have notice of the claim and the notice would advise people that there would be a hearing on the claim for the Board to determine and consider merit, whether compensation is due and if so, whether the County will pay the compensation or discontinue operation or application of the regulation that had caused the reduction in value of the property. He added once the Board makes a decision, it will be sent to all the parties and that would end the County’s involvement at that point, pending responses.
Sorenson suggested since the County didn’t have a budget for this, that the Planning Commission could make the decision. He said if this goes into effect, it would be a spot down zoning process.
Vorhes responded that this was designed to lead to a Board decision within 90 days of the receipt of the claim, and not the completeness review under Measure 7 to either pay or do something to the regulation that reduces the value. He said in order not to include another step, he recommended that it be a quick step that does not change the timeframe that had already been set up. He added if the Planning Commission and the Board were interested in including the Planning Commission in any of the hearings the Board had, that they would be joint hearings and the Planning Commission could make a recommendation and the Board could act. He said if the regulation still applied at the end of the 90-day period under the measure, compensation is due.
Wilson added if the 90-day period was not honored, the measure further provides that they would have the opportunity to pay compensation and attorney’s fees necessary to collect the compensation. She said the potential scope of the measure leads to the uncertainty of what the claim would be based on and until they know that with the application, they won’t know if the claim is based on a planning/zoning regulation, or another regulation. She added to have the Planning Commission built into the process on every claim might not make sense.
Weeldreyer stated she would be hesitant to add this to the Planning Commission’s workload.
Wilson stated that this process was not perfect. She said when the measure goes into effect, she expected to come back with amendments to make the process more workable and user friendly.
Commissioner Sorenson opened the Public Hearing.
Betty Steckler, 934 Washington, #8, Eugene, Regional Representative for 1000 Friends of Oregon, stated they were aware of the difficult position that Lane County was in now. She noted the 1000 Friends of Oregon had significant concerns with the draft ordinance for the implementation of Measure 7. She asked the Board to add a provision to make it clear that public notice and a public hearing would be part of the process and to remove the waiver of regulation from the ordinance. She said public notice and a public hearing for Measure 7 claims is important. She said they were concerned about Lane County’s inclusion of a provision to “discontinue application of the regulation of the subject property for a waiver that purports to allow Lane County the authority to waive the regulation.” She encouraged the Board to separate the procedural aspect of the ordinance (which they supported) from the waiver or variance issue. She said their staff attorney would challenge any waivers that would give local jurisdiction the possibility of waiving state laws. She said it was important that state land use laws stay in effect and are enforced.
Martha Moulton, 83712 Springhill, Pleasant Hill, chose not to speak.
Richard Fairbanks, 37290 Wheeler Road, Pleasant Hill, stated that rural development doesn’t pay its way and it has hidden subsidies. He said it was time to look at system development charges. He said money is given away to developers in rural areas.
Peter Graham, 39024 Pauls Road, Marcola, said he was concerned that land use claims may be jeopardized. He urged the Board to consider the potential impact before adopting any language that would allow weakening or suspension of land use regulations.
Cheryl Kinley, 32300 Bush Garden Drive, Harrisburg, said this pertained to her property in Junction City. She said she bought her property ten years ago and on December 19, 1990, it was changed to exclusive farm use to their surprise. She said they have sat on property that should be theirs to use as they wanted. She asked why they had to pay a fee to correct a wrong.
Major Defoe, 93370 Highway 99, Junction City, stated he voted for and supported Measure 7. He hoped that it helped to plan ahead.
Astin Fisher, 175 E. 36th Avenue, said he has an area of land that is “Y” shaped with 1½ mile of stream frontage. He said his land had been changed but he had lost acreage to utilities and roads.
Morrison noted that three people had comments and she submitted them into the record.
Sorenson asked what the language was in Measure 7 that the initiative petitioner used to describe what a local government would do if they didn’t pay.
Vorhes responded that compensation should be due the property owner if the regulation continues to apply to the property 90 days after the owner applies for compensation under this section.
Sorenson asked if the Board exercised 2.760 1 (b) (and they chose to discontinue to apply the challenge regulations) if it would be just for the subject property.
Vorhes recommended only doing it in context of the claim that came to the Board. He said the ordinance is set up to deal with the property that is brought to the Board of a claim and the action taken by the Board (if they declined to pay compensation) is intended to focus on the subject property.
Green noted that Lane County hadn’t budgeted for this and asked where the money would be coming from to compensate for all the claims.
Van Vactor responded they have a self-insurance claim from which they pay claims and it was modest so it wouldn’t cover many claims for long. He added if the reserves were exhausted, they could sell assets to cover the judgments. He noted they also have reserves that could be reassigned.
Mark Herbert, Lane County Planning Commission, stated if there was no money to pay the claims then the County would litigate the issues.
Wilson responded if the only option was to pay the County as a whole, there would be a problem. She said their job is to be conservative in giving advice to the Board, trying to assess what is realistic and what the worst case would be.
Van Vactor said local governments need the help of the Oregon Legislature for enforcement up to a higher level to deal with this measure.
Herbert asked whether or not this measure was constitutional and if it was, they need a remedy to pay for it. He said they are spending time trying to figure out whose liability it is.
Wilson responded they had examined those questions.
Don Clarke, Lane County Planning Commissioner, said they had reviewed the matter and they were proposing to significantly increase the notice area. He said increasing the notification to at least the 1500-foot level, but inside the city limits was not necessary, as there would be tiered notification.
Wilson recommended adoption of the ordinance as it was with direction to make that kind of change recommended by the planning commission.
Sorenson reiterated that there were two proposed changes to what was printed: that the ordinance would not go into effect until Measure 7 goes into effect and a possible change to the notice procedure in those areas within so many feet instead of 500 feet within an urban growth boundary and 1500 feet outside.
There being no one else signed up to speak, Commissioner Sorenson closed the Public Hearing for the Lane County Board of Commissioners.
There being no one else signed up to speak, Clay Myers closed the Public Hearing for the Lane County Planning Commission.
MOTION: to recommend approval of Ordinance 9-00.
Esty MOVED, Clemow SECONDED.
MOTION: to approve Ordinance 9-00 as presented by the Planning Commission.
Wilson asked what the two amendments were.
Sorenson responded the first was the proposal that was discussed by Vorhes in his review of this ordinance, about the effective date of this ordinance, becoming effective only if the courts say so. He said the second would be changes to 2.7501(c), being within an urban growth boundary versus outside of a rural community.
Wilson noted they received a revised cover page of the ordinance and they are intending to adopt the ordinance with the revised cover page. She said it allowed the ordinance to be effective within the urban growth boundary until Ordinance 10-00 is passed.
ROLL CALL VOTE: 4-0.
2. OTHER BUSINESS
a. ORDER 00-12-6-8/In the Matter of Amending Lane Manual Chapter 60 to Establish a Fee Charged by the County Administrator for Real Property Compensation Applications Resulting from Ballot Measure No. 7.
Vorhes reported the Order had attached to it a page proposed to be added to Lane Manual that would establish a fee. He said that the Finance and Audit Committee met and suggested changes. He passed out changes (copy in file). He said the fee would be $850 and in addition would require the applicant to pay $100 for notice costs and one-half cost of an appraisal review as required by the County Administrator. He noted the page sets forth the fee that was recommended by the Finance and Audit Committee.
Van Vactor noted that the League of Oregon Cities had prepared a chart as to what other municipalities were charging for fees and he distributed that. (Copy in file).
Green noted that Weeldreyer and he had a difference of opinion in the Finance and Audit meeting. He said the $850 they that is proposed, does not come close to the recovery. He noted that in Lane County this measure did not pass and it is hard to pay a fee for something that was not wanted. He noted the $850 was agreed to plus $100 for notices and half the cost of the appraisal review. He noted there are usually two appraisals and there is a cost for appraisal review. He didn’t think there was support for the $100 for notices and the 50% of the appraisal review.
Vorhes explained since they adopted an ordinance that will become operative when Measure 7 becomes effective (and they don’t know when that will happen), that they don’t have to take action but recommended they have something in place with fees as the ordinance provides for application.
Morrison agreed with Vorhes, stating she would not oppose $850 or $100 because the County shall refund the application fee and costs paid by the applicant if it is determined by the County or by a court that the applicant is entitled to compensation. She said she was a full supporter of Measure 7.
Marion Esty, Lane County Planning Commission, reported that she worked with this with the City of Veneta, and the League of Oregon Cities recommended a $4,000 fee. She thought $850 was very minimal and thought it should be more. She added it went in by resolution so it could be modified.
Herbert said that in some cases $850 could be onerous and in other cases it would be nothing. He wanted an evaluation that addresses the many issues.
Clemow noted in the last sentence that the County would refund the money if the applicant were entitled to it. He said that the $100 was notice cost. He contended that there was no reason for the distinction of $100 for notice costs and it should be just a $950 flat fee. He was for one-half of the appraisal.
Vorhes noted that the $100 notice cost was separated from the $850 because there would be situations where the only notice that would be provided would be to the applicant, if the County Administrator makes the determination that the claim does not need a referral to the Board for decision. He said under this process there would not be the notification of the surrounding property owners. He recommended that the $100 notice cost be kept separate.
Weeldreyer shared Van Vactor’s concerns that if Measure 7 is implemented, it is a constitutional right and at some point Lane County may be sued for putting in a process that is onerous that incurs costs for the applicant, but they are being asked to pay the fees and half of the County’s cost to pay for a second appraisal. She said no matter what decision they make, they are leaving themselves open for litigation.
MOTION: to approve ORDER 00-12-6-8 to have one lump sum of $850 and $100 for notice and excluding the 50% appraisal review.
Green MOVED, Morrison SECONDED.
Weeldreyer noted the Finance and Audit Committee recommended the amount as that was what Springfield had adopted.
Sorenson had concerns about the application fee in the context of Measure 7 because of the bold language that said the applicant is entitled to compensation and reimbursement for expenses. He said even if they did have the right to do that, having a one-size-fits-all fee did not meet his test for reasonableness. He said he would vote no.
Green responded there was no way to soften costs. He said there are costs associated with activities. He said he didn’t think the public wanted Lane County to incur each cost because it is taxpayers' money that allows Lane County to operate. He said they are recovering less than 50%.
VOTE: 3-1 (Sorenson dissenting).
b. ORDER 00-12-6-9/In the Matter of Approving Amendments to Intergovernmental Agreements with the Cities of Eugene and Springfield Regarding the Transfer of Land Use and Building Regulations Within the Urban Growth Boundaries to Provide for a Process to Review Claims Made Pursuant to Article I, Section 18(a) through (f) of the Oregon Constitution.
Vorhes said it was a jump-start on the issue as it related to the urban growth boundary. He said they changed the ordinance to add authorization to opt for the cities to operate in the Springfield and Eugene urban growth areas under the county ordinance. He said this action would authorize the amendment of the intergovernmental agreements with Springfield and Eugene to make it clear that they have the responsibility (as the language of the proposed amendment states) to make decisions on property owner claims made pursuant to the November 7, 2000 voter approved amendments to Article I, Section 18 of the Oregon Constitution. He noted what the Planning Commission had tonight and what the Board will have next week, would be to hold a hearing on an ordinance that will specifically adopt the cities’ process ordinances for application within the urban growth boundaries of Springfield and Eugene.
MOTION: to approve ORDER 00-12-6-9.
Morrison MOVED, Weeldreyer SECONDED.
Chair Myers opened up the Public Hearing for Ordinance 10-00 in the matter of amending Chapter 2 of Lane Code to add provisions establishing a real property compensation application process resulting from voter approval of Ballot Measure 7 and declare and emergency. There being no one signed up to speak, he closed the Public Hearing.
MOTION: to recommend approval of Ordinance 10-00.
Herbert MOVED, Clemow SECONDED.
Wilson acknowledged the work that Vorhes had done in bringing all of this work together.
There being no further business, Chair Myers adjourned the meeting of the Lane County Planning Commission at 8:35 p.m.
There being no further business, Commissioner Sorenson adjourned the meeting at 8:35 p.m.
to Board Notices