BOARD OF COMMISSIONERS'
December 1, 2004
Commissioners' Conference Room
Commissioner Bobby Green, Sr. presided with Commissioners Bill Dwyer, Don Hampton and Anna Morrison present. Peter Sorenson was present via telephone. County Administrator Bill Van Vactor, Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.
Lane County Planning Commission Members Present: Juanita Kirkham, Marion Esty, Jim Carmichael, Mark Herbert, Steve Dignam and Ed Becker.
19. PUBLIC HEARINGS
a. SECOND READING AND PUBLIC HEARING/Ordinance 18-04/In the Matter of Amending Chapter 2 of Lane Code to Establish a Real Property Compensation Claim Application Process Resulting From Voter Approval of Ballot Measure 37 (November 2, 2004) and Declaring an Emergency (NBA 7 PM 11/10/04).
Vorhes explained the ordinance is dealing with the process involved in any claim that comes to the County under Measure 37. He said it is an attempt to provide that process in the code that utilized some of the things they did in the year 2000 after the passage of Measure 7. He stated it sets out a process for reviewing information provided to the County and what information should be provided. He added it provides that the County Administrator will be in charge and review the claim, make an initial evaluation, determine whether or not it is a valid claim and if it is not, the County Administrator is given the authority to deny the claim and notify the applicant of that fact. He noted if there were something to it, the County Administrator would refer that to the Board for an ultimate determination of whether the claim should result in compensation or whether it is a waiver or other type of action with regard to the regulation that reduces the value of the property. He noted at that point, the process sets up a hearing at the Board and notice will be sent to properties within 500 feet of the subject property of the claim and if it is outside any area of the County, notice will be sent to property owners within 1,500 feet of the subject property. He said the Board will take up the matter and consider the claim and make a determination on whether it is a valid claim and compensation should be provided or under Measure 37 a decision should be made to modify, remove or choose not to apply the particular land use regulation that is the basis for the claim.
Commissioner Green opened the Public Hearing.
Ken Gee, 81778 Highway 99, Highway 99, Creswell, commented that Ordinance 18-04 is Lane County’s counsel’s attempt to subvert the passage of State Measure 37. He said upon review, the claimant has two avenues of recourse, to utilize Ordinance 18-04, to pay excessive expenses to begin the process. He noted the second is a court procedure as expressed in Section 6 and 7 of Measure 37. He said it allows the claimant to proceed directly to the court, bypassing the County’s claim process altogether. He thought when successful it would divert all collection expenses to the County to pay. He thought the stronger the applicant’s position; the more likely they are to bypass the County’s process. He thought the County should want court proceedings as a last resort, not the expected norm. He commented that currently there is no methodology to appraise property within the scope of Measure 37. He commented that in Section 2.77 County Counsel’s office stepped outside the text and intent of Measure 37, referring to a built in automatic reversal. He said there was nothing like that in the state bill. He believed the entire Ordinance 18-04 should be scrapped. He thought they should take an example from an existing process for settling disputes. He recommended a board be appointed by the commissioners to serve as a first step in the claims process. He added the board could act as a mediator between the claimant and the County to establish a forum for discussion. He said his plan would begin the claim process with a sign up sheet. He commented if the County proceeds with Ordinance 18-04 without correction, he would opt for the court alternative.
Nancy Nichols, 93849 Deadwood Creek, Deadwood, said real problems were corrected by the passage of Measure 37 but it had created new problems. She thought many problems could be solved by Lane County by having sensible enabling regulations. She said that safeguards need to be created so all affected parties are notified when someone uses the new law to apply for a permit. She added that anyone affected should have the right to present information on the true reduction value and to step in with compensation if local government chooses not to. She stated that notification needed to be extended as 500 feet is not enough. She commented that noise, odor and traffic affect more than the next-door neighbors. She noted there would be cases where it is in the public’s interest to pay compensation instead of allowing a Measure 37 use. She said funds need to be established to pay for cases like this. She thought to generate money, having each landowner whose property was rezoned to make it more valuable should pay the difference to compensate for those whose property was made less valuable by zone changes. She suggested removing the F-1 and EFU deferrals and to assess it at the value the owner submits in his request for the exemption. She commented the tax difference between the old value and the new could be set aside to pay future claims. She noted there was nothing in the measure to preserve land value for people who paid top dollar for quiet enjoyment of their homes.
Mona Lindstromberg, 87140 Territorial Road, Veneta, commented that being a resident in rural Lane County she sees the potential negative impact from Measure 37 to farm and forest lands. She wanted to see Lane County’s ordinance have comparable provisions to those in the Eugene and Veneta ordinances. She said when any land use regulations are removed or modified; they have provisions for putting back into effect (with respect to the subject property) all the land use regulations in effect at the time the owner acquired the property. She added that both also have provisions for private causes of action. She said if the removal or modification of a land use regulation from a jurisdiction’s action under Measure 37 results in a reduction in value of other property in the vicinity, those property owners shall have cause of action in Oregon Circuit Court. She said to serve the public’s interest, the procedure to recover the cost in processing claims must be formulated and implemented. She said that Measure 37 becomes effective on December 2 and Lane County needs to have procedures in place for processing claims. She noted if the items of concern could not be incorporated now, she requested that they be duly considered as soon as possible and to look to the public’s interest. She commented that fairness and balance would best serve Lane County residents.
Truce Cronky, 84977 Doane Road, Crow, commented that people don’t realize what is going on. He said he owns 330 acres of land.
Nina Lovinger, 40093 Little Fall Creek Road, Fall Creek, commented that some people would make a business out of cashing in on Measure 37. She thought they would disregard the rights and interests of others as they submit claims for financial reward or demand relaxation of land use regulations that have preserved the natural landscape. She stated that Oregon’s 30 years of landscape regulations have had a positive effective on fostering compatibility of uses and activities allowed in the rural areas of Lane County. She said in order to thwart frivolous claims, all people who submit claims should pay a substantial filing fee. She suggested that the fee be 10% of the financial remuneration that the claimant is requesting. She noted the County would incur substantial costs for the research and other review that will be necessary to determine the validity of claims. She said the investment of staff time to process claims should be paid for by claimants. She commented that taxpayers and the County budget should in no way be negatively impacted by the passage of Measure 37.
Robert Emmons, 40093 Little Fall Creek Road, Fall Creek, reiterated the concerns about the staff’s recommendation on fees, that any claimant should do more than partially cover the cost of the claims. He thought it was a matter of fairness for people to cover the entire cost of the claim. He suggested an initial deposit substantial enough to be serious, keeping track of hourly accounts beyond that.
Lauri Segel, 1001 Friends of Oregon, 120 W. Broadway, Eugene, supported the County’s ordinance. With regard to reduction in fair market value, she thought the evaluation should be based on what the property would be worth if a particular regulation would not have been enacted or enforced at all instead of not applied to the claimant’s property. She said the interpretation was consistent with the language and intent of the measure that seeks to prevent harm caused by regulation. With regard to the waiver, she said the text in Section 8 of the measure states only the governing body responsible for enacting the land use regulation may elect to modify, remove or not apply that regulation. She noted in circumstances where a claim is based upon a family relationship as defined in the measure, compensation could be claimed for reduction of value by regulations enacted after the application by the owner or family member of the owner. She added in Section 8 of the measure jurisdiction could only waive or modify a regulation enacted after the current owner inherited or otherwise acquired the property. She said it could not waive a regulation enacted after the family member acquired the property but before the current owner acquired it. She said it should be clearly stated in the County’s implementing ordinance to avoid confusion and unrealistic expectations on the part of claimants.
Chris Okray, 323 W. 22nd St., Cottage Grove, said she had two different city solutions to Measure 37 and both have a provision for private causes of action. She said the language states that if the city council’s approval of a claim by removing or modifying a land use regulation causes a reduction in value of other property located in the vicinity of the claimant, the neighbors shall have a cause of action in state circuit court to recover from the claimant the amount of the reduction and shall also be entitled to attorney’s fees. She commented that many people purchased their properties and this provides an entitlement through Measure 37 and they might suffer a negative impact to the value of their property and they should also have the right to be compensated.
Norm Maxwell, 79550 Fire Road, Lorane, wanted a posting on Lane County’s website of Measure 37 claims with all pertinent information.
Jim Welsh, 9000 Killion Lane, Elmira, spoke on behalf of the Eugene Association of Realtors. He said the Eugene and Oregon Association of Realtors stood silent and took a neutral position on Ballot Measure 37. He noted the concern is that they don’t continue going down the road of litigation. He found in Lane County’s Ordinance 18-04, Section 2.770(2) requires Measure 37 resolutions to be personal to the claimant and not to the specific property. He commented that was inconsistent with state statute. He said Lane County’s ordinance states: “Shall automatically cease any kind of relief to regulations provided by Lane County that will go with the person upon sale; upon transfer of property it will cease.” He didn’t think that was in the spirit of what the voters were asking for. He said it complicates the real estate industry. He hoped the Board would revise this and go forward.
There being no one else signed up to speak, Commissioner Green closed the Public Hearing.
Vorhes’ recommendation to the Board is to have something in effect that covers information and a fee to cover some costs. He added without the fee or the process it becomes less clear what the County could ask for with information. He indicated it was mentioned in the measure about counties and cities developing processes. His recommendation was to adopt something to put in place today and the concerns the Board has he could review and come back with revisions to address those concerns.
Green commented that what they have is not perfect. He said under the law they are required to have something in place and then direct staff to take the concerns that are raised today to improve it.
Dignam supported the ordinance. With regard to Welsh’s comment regarding the fact that relief from the regulation goes with the person and not the property, he didn’t think that is a practical solution they could implement. He noted a comment was raised about the private cause of action. He supported the whole concept of reimbursement for private property owners. He was concerned about when adjacent property owners suffer as a result. He commented what works out for the benefit of one private property owner under Measure 37 works out as a detriment to another owner. He thought a private cause of action might be a potential solution.
Herbert thought there needed to be clarifying language to the jurisdiction on what the regulatory agency is, whether the County is the regulating agency versus the state and to be clear with the applicant.
Becker asked what specific role the Planning Commission would have with the application.
Dwyer asked if the change in the designation from the person to the property is a substantive change.
Vorhes thought it was. He added that any changing of the language would be a substantial change. He noted that Section 8 deals with a waiver to allow the owner to use the property for a use permitted at the time the owner acquired the property. He said they would treat it as a personal waiver, not a waiver that runs with the land. He wasn’t sure how it would play out until they saw some of the claims.
With regard to the position the Planning Commission plays, Vorhes said they didn’t include them because of the time frame. He commented if the Board was interested in the Planning Commission playing a role in evaluating individual claims before the Board takes action, that was something the Board needed to act on.
With regard to Ballot Measure 37, Van Vactor noted that if they exercise the waiver clause, it guarantees a use, not a process. He said as the court interprets it, that use is given a definition and zone changes and subdivisions are not guaranteed under this act.
Carmichael asked if Lane County was consistent with what other counties were doing.
Vorhes indicated there were a variety of proposals and Lane County was in the middle. He saw drafts of proposals ranging from minimal to very onerous and stringent in terms of its requirement.
Herbert supported the ordinance.
Esty supported the ordinance. She asked about the filing fees and the difference in the communities. She thought they were doing the best they could.
Dwyer wanted to strengthen the impacts it would have on the unintended consequences that result from people who are impacted by the claims.
Vorhes noted in front of the Board is a manual provision that would establish an initial fee in the amount of $750 plus a $100 notice cost. He added it authorizes the County Administrator to track the costs that the County incurs and should they exceed that initial contribution, then he has the ability to bill the applicant for that. He said it also sets out a statement that if the County determines that compensation is to be paid and decides to pay the compensation, part of that would be a refund of the fee.
MOTION: to move to support Ordinance 18-04, subject to modification and refinement in the future.
Herbert MOVED, Esty SECONDED.
Dignam asked how they would modify this.
Vorhes responded he would look to the Planning Commission and then the Board to get specific direction on the areas to address. He said he would work the modifications and prepare an ordinance as quickly as possible to get back to the Planning Commission and the Board to reflect those revisions to incorporate the suggestion that the Planning Commission and the Board gave. He noted some of the issues they discussed are issues that they might have to resolve in the context of individual claims and articulating something in the ordinance would be difficult to do.
Green said they have to continue to work on this and have legal counsel and administrative staff turns this around in an expeditious way so they don’t put themselves in a greater exposure.
Herbert reiterated his concerns were whether or not the rights pass from the person to the property. He also wanted to know the impact on adjoining property owners and a reasonable way to compensate them. He wanted to balance the desire to charge fees that are fair and reasonable with not appearing that they are trying to make the fee so onerous as to change the intent of the law and prevent people from utilizing the process.
Dwyer thought they needed to review the private cause of action for someone that is impacted by a claim. He said they need to have it as part of any subsequent changes.
Morrison indicated that Section 2.770(2) the transfer of property, was the same provision in the City of Eugene’s ordinance and they had deleted it. She said if the court makes the decision, it doesn’t matter what the Board wants to do, they would have to implement it. She wanted number two addressed.
Green shared the same concerns as the Planning Commission. He was concerned that Measure 37 lacks uniformity statewide in terms of guidance. He said they have to determine what is best for Lane County. He thought if someone were in the city and the County it could be subject to two different interpretations.
Sorenson commented that the Planning Commission should be following the process. He thought they should be able to make recommendations to the Board on changes to the ordinance. He thought the revisions should be that the Planning Commission should monitor the implementation and the fees that are received should pay for the process. He said the other activities of the Land Management Division should not suffer as a result of the claims process. He asked if imposing these fees on applicants was a way of stopping them from making applications. He thought the public had a substantial role in the process. He thought getting a website and a process of public hearings so the public is allowed to testify on the claims and the quality of the evidence would be helpful.
Hampton thought they should pursue the private cause of action. He thought they should clarify the property versus the owner and what that means. He thought if they could provide information as to who the controlling agency is, that might prevent people from wasting time and effort in filing a claim. He agreed with posting information on the website. He thought they should make it as easy as possible for people who are going to be filing the claim to get the information they want.
Van Vactor reviewed the City of Eugene’s ordinance and said it does appear that the language Morrison was referring to was stricken. He thought that was a legal issue that the courts would have to resolve regarding a Ballot Measure 37 waiver.
Green thought they should flag that to see how problematic that would be.
MOTION: to approve and accept the Planning Commission’s recommendation along with the caveat they mentioned for posting claims for Ordinance 18-04.
Dwyer MOVED, Hampton SECONDED.
ROLL CALL VOTE: 5-0.
Vorhes stated he has a list of revisions. His intent would be to bring back more detailed choices in the areas of personal or property-specific waivers. He said the provision they have adopted does try to strike a balance and recognize that Ballot Measure 37 (in terms of the ability to use a property) looks to the regulations in place at the time the owner acquired the property. He said he would look at the analysis and provide more options. He added the private cause of action raises some legal risks. He said they could discuss the fees in the future.
b. ORDER 04-12-1-12/In the Matter of Amending Chapter 60 of the Lane Manual to Establish Fees Charged by the County Administrator for Real Property Compensation Claim Applications Resulting from Ballot Measure 37 (November 2, 2004) (LM 60.842).
MOTION: to approve ORDER 04-12-1-12.
Dwyer MOVED, Morrison SECONDED.
20. OTHER BUSINESS
There being no further business, Commissioner Green adjourned the meeting at 3:00 p.m.