HomeMy WebLinkAboutOrdinance 5970 12/04/2000
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(General)
ORDINANCE NO. 5970
An Ordinance Providing a Process for Claims Related to
Regulatory Takings Arising Under the 2000 Amendment
to Article I, Section 18 of the Oregon Constitution
(Ballot Measure 7) adding to Chapter 2 "Government and
Administration" of the Springfield Municipal Code
Sections 2.900 et. seq. "Regulatory Takings"
and Declaring an Emergency
The City of Springfield ordains as follows:
Section 1, Chapter 2 "Government and Administration" of the
Springfield Municipal Code is hereby amended by the addition of
the following ~ections implementing a process for the evaluation
of claims for regulatory takings filed under the 2000 Amendment
added to the Oregon Constitution Article I, Section 18 by
Measure 7 (November 7, 2000).
"REGULATORY TAKINGS
4It Section 2.900 Title. Section 2.900 to 2.986 shall be known as
the Regulatory Takings Section.
Section 2.910 Purpose. The Measure permits' owners of private
real property to apply for just compensation for regulatory
takings filed under Article I, Section 18 of the Oregon
Constitution. This sub-chapter provides a prompt, open and
thorough process that enables property owners to present their
legitimate claims consistent with that Article.
Section 2.920 Definitions. For the purpose of Springfield
Municipal Code Section 2.900 through 2.986 the following terms,
phrases, words and their derivation shall have the meaning given
in Springfield Municipal Code Section 2.910. When not
inconsistent with the context, words used in the present tense
include the future; words in the plural include the singular and
words in the singular include the plural. Words not defined in
Springfield Municipal Code Section 2.910 shall be given the
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meaning intended in Article I, Section 18, Subsections (a)-(f) of
the Oregon Constitution, or as those words may be subsequently
defined by statute. Words used in Springfield Municipal Code
sections 2.900 through 2.986 that have the same words as words
used in the Oregon Constitution Article I, Section 18,
Subsections (a)-(f) shall have the . same meaning as the words used
in those subsections of .the Oregon Constitution, notwithstanding
any different definition in any other regulation. If not defined
there, the words shall be given their common and ordinary
meaning. In construing the meaning, judicial interpretations of
the Oregon Constitution, Article I, Section 18, Subsections (a)-
(f) may be relevant.
DEFINITIONS:
Appraisal. An appraisal by an appraiser licensed by the
Appraisal Certification and Licensure Board of the State of
Oregon.
city Manaqer. The City Manager or the City Manager's Designee.
Exempt Requlation. A regulation that is a historically and
commonly recognized nuisance law; a regulation to implement a
requirement of federal law to the minimum extent required; or a
regulation that prohibits selling pornography, performing nude
dancing, selling alcoholic beverages or other c6ntrolled
substances, or operating a casino or gaming parlor.
Requlation. Law, rule, ordinance, resolution, goal or other
enforceable enactment.
2.930 Application Requirements. All claims applications must be
submitted to the City Manager on the most current form provided
by the City, along with the appropriate fee and all necessary
supporting documentation and information required by Section
2.940, sufficient to demonstrate compliance with all applicable
approval criteria set forth in Section 2.960. The applicant has
the burden of demonstrating, with evidence that all applicable
approval criteria are, or can be met.
2.940 Application for Claim. An applicant seeking to file a
claim under SMC 2.900 through 2.986 shall be an owner or agent of
the property that is the subject of the claim. An applicant
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shall submit an application consisting of all of the items set
out in SMC 2.940(1)-(15). The City Manager may waive the
submission of any materials if not deemed applicable to the
specific claim. Within 10 days of when the application is first
submitted, the City Manager may require additional information
beyond that listed in SMC 2.940(1)-(15) where useful to address
approval criteria set forth in section 2.960. The applicant is
responsible for the completeness and accuracy of the application
and all of the supporting documentation. The City will not deem
the application complete until all information required by the
City Manager has been submitted. Unless specifically waived by
the City Manager, the following must be submitted:
(1) A completed application formi
(2) The name, mailing address, telephone number and
authorization signatures for all the property owners or contract
ownerSi and the designated applicant owners or applicant agent
who is the owner's designated representative regarding the
processing of the applicationi
(3) A legal description and tax lot number of the subject
property as well as a street address for the property (if any) i
(4) A title report issued within 30 days of the
applicationts submittalt including title history and including a
statement of the date the applicant acquired ownership of the
property and showing the ownership interests of all owners of the
propertYi
(5) A statement specifically identifying the section of
Springfield Municipal Codet Springfield Development Codet or
other regulation that allegedly restricts the use of the real
property and allegedly causes a reduction in the fair market
value of the subject propertYt including the date the regulation
was first adopted, first enforced or applied to the subject
propertYi
(6) A copy of a written appraisal indicating the amount of
the alleged reduction in 'the fair market value of the property by
showing the difference in the fair market value of the property
before and after application of each of the challenged
regulations, individuallYt and after the application of all of
the challenged regulationst cumulatively. For claims of $50,000
or more two appraisals are required. One appraisal is required
for claims of less than $50tOOO. Any appraisal offered to
support an application for compensation shall be subject to the
following special requirements:
(a) The appraisal must expressly note all existing
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infrastructure limitations and value the property
without an assumption that the infrastructure will be
improved at governmental expense or through
discretionary governmental action.
(b) The appraisal's considera~ion of the reduction in fair
market value shall be limited .to the difference in the
fair market value of the property before and after the
application of the regulation including the net cost to
the land owner of an affirma~ive obligation to protect,
provide, or preserve wildlife habitat; natural areas;
wetlands; ecosystems; scenery; open space; historical,
archeological, or cultural resources; or low-income
housing but shall not include consideration of any
other damage that the regulation may have upon the
property in question or any other property owned by the
applicant.
(c) The appraisal must expressly consider the effect of the
aforesaid Measure 7 on the availability of other real
property including the extent to which the supply of
such other real property is or will be increased due to
the non-enforcement, discontinuance, repeal or waiver
of regulations following the passage of Measure 7.
(7) A written statement addressing the criteria listed in
SMC 2.960(a)-(e);
(8) Identification of any exempt regulation that may apply
to the property, whether or not the regulation affects the market
value of the property;
(9) Identification of the relief sought by the applicant.
Please include copies of all reports, plans, site plans and other
documents submitted to the City for any previous applications for
land use permit approvals;
(10) A copy of' the site plan and drawing related to the
proposed use of the property in a readable/yet legible ax x 11"
format for inclusion in the application record;
(11) Whether and in what manner and by what means, the owner
has contested the validity of the regulation, the application of
the regulation to the subject property, or the manner in which it
is imposed, interpreted or enforced;
(12) written permission for access to the property by the
City Manager or his designee including but not limited to agents
or appraisers necessary to evaluate and appraise the property and
the claim for purposes of determining whether or not
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regulation(s) have had the effect of reducing the fair market
value of the property.
(13) A statement indicating to whom any compensation
determined must be paid; and
(14) Copies of any covenants, conditions and restrictions
applicable to the subject property.
(15) A listing of each parcel of land owned by the owner or
owners the private real property as to which the owner is
applying for compensation, that is either directly contiguous to
the private real property or is indirectly contiguous through
contiguity with another parcel under the same ownership that
itself is directly or indirectly contiguous, together with the
following:
(a) The date of acquisition of each such directly or
indirectly contiguous parcel;
(b) Information showing the extent to which the owner has
treated the private real property, as to which the
owner is applying for compensation, and the directly or
indirectly contiguous parcels as a single economic
unit, for example in the purchase and financing of the
land and in the owner's or owners' development of and
economic planning for the land; and
(c) Information showing the extent to which application of
the subject regulation to the private real property, as
to which the owner is applying for compensation,
enhances the value of the contiguous or indirectly
contiguous parcels of land.
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Unless waived by the city Manager, an application also shall
include an application fee, in the amount established by separate
resolution of the Common Council, to at least partially cover the
City's cost of processing the application, to the extent an
application fee may be required as a condition of acceptance of
filing of an application under Oregon Constitution Article I,
section 18, subsections (a)-(f). The City shall refund the
application fee if it is determined by the City or by a court
that the applicant is entitled to compensation under Oregon
Constitution Article I, Section 18, subsections (a)-(f).
2.950 Completeness Review. Upon submission of a compensation
claim, the City Manager will date stamp the application form and
verify that the appropriate application fee has been submitted.
The City Manager shall review the claim application and, within
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10 days of its receipt, notify the applicant as to whether the
application is complete. If the City Manager determines that the
application is complete, the City Manager shall begin the
application review process. If the City Manager determines that
the application is incomplete, the city shall advise the
applicant in writing of the necessary missing information.
within 10 days of the mailing of a notice of missing information,
the applicant shall submit to the City a written statement
indicating either an intent to submit the missing information or
a refusal to submit the missing information. An applicant
indicating an intention to submit missing information shall
clearly include a waiver of the 90-day deadline contained in
Oregon constitution Article I, Section 18(d) for a period of time
equal to the time it takes to supply the missing information.
The City shall begin review either:
(1) Upon receipt of all of the missing information requested
by the City;
(2) Upon receipt of a written statement from the applicant
indicating that the missing information will not be provided; or
(3) Upon the 10th day after mailing the notice of missing
information referred to above, if the applicant has not
responded.
2.956 Evidence. The applicant has the burden of proof for all
issues required to show that just compensation is due to property
owner. The City has the burden of proof to show that a
regulation is an exempt regulation.
2.960 Application Review and Recommendation.
(1) The City Manager shall make a determination as to
whether the application qualifies for Common Council compensation
consideration. An application qualifies for compensation
consideration if the applicant has shown that all of the
following criteria are met:
(a) An application has been properly filed including but not
limited to all property owners or contract buyers must
sign or authorize the application.
(b) The City has either adopted, enforced or applied a City
regulation that restricts the use of private real
property;
(c) The restriction on use has the effect of reducing the
value of the property upon which the restriction is
imposed;
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(d) The challenged regulation was adopted, first enforced or
applied after the current owner(s) of the property (the
applicant) became the owner; and
(e) The challenged regulation is not an exempt regulation as
defined in SMC 2.920.
(2) The City Manager may, in the City Manager's discretion,
retain the services of an appraiser to appraise the property and
the claim, for purposes of determining whether or not the cited
regulations have had the effect of reducing the fair market value
of the property. The appraiser shall be provided access to the
property and any business records necessary for making such a
determination.
(3) If an application fails to meet one or more of the
criteria in SMC 2.960(1) (a)-(e), the City Manager shall issue a
written final decision denying the claim and explaining the
reason(s) for determining that the application does not qualify
for compensation consideration and will not be referred to the
Common Council.
(4) If the application meets all of the criteria in SMC
2.960(1) (a)-(e), the city Manager shall issue a written decision
referring the application to the Common Council and recommending,
based on consideration of the criteria, that the Common Council
either compensate the applicant for the reduction in fair market
value or discontinue application of the regulation to the subject
property.
(5) A recommendation of discontinuance of the application of
the regulation to the subject property may occur after
consideration of the information included in the application and
any other evidence obtained or received. The City Manager shall
determine whether discontinuing application of a regulation is
necessary to avoid the owner's being entitled to compensation
under Oregon Constitution Article I, section 18, subsections (a)-
(f); and if so the extent needed to avoid the owner's being
entitled to such compensation and the amount of compensation to
which the owner would be entitled without discontinuing
application of a regulation. The City Manager shall compare the
pUblic benefits from application of the regulation to the owner's
private real property to the public burden of paying the required
compensation to the owner if a discontinuance from application of
the regulation is not granted, taking into consideration the
financial resources of the City for the payment of such claims.
Based on this comparison, the City Manager shall prepare a
written report to the Common Council regarding such determination
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and the evidence on which they are based; and, if the City
Manager has determined that discontinuing application of a
regulation is needed to avoid the owner's being entitled to
compensation, making a recommendation either to grant a
discontinuance that will avoid the owner's being entitled to
compensation, grant a discontinuance that will not avoid but will
reduce the compensation to which the owner is entitled and pay
the reduced compensation, or deny a discontinuance and pay the
compensation to which the owner is entitled.
(6) Notice of the denial or recommendation to Common Council
shall be mailed to the applicant.
~7) The City Manager shall issue a final decision denying
the claim as specified in Section 2.960(3), or a recommendation
to the Common Council as specified in Section 2.960(4) by the
50th day after the application was received unless a waiver of
the 90 day deadline contained in Oregon Constitution Article I,
section 18(d) is received from the Applicant(s).
2.966 Application Notice.
(1) within 20 days of the referral to the Common Council,
but no less than 20 days before the Common Council holds a public
hearing, written notice of the application shall be mailed to all
of the following:
(a) The applicant;
(b) Other owners of the subject property listed on the
application;
(c) Owners and occupants of properties located within
100 feet of the subject property excluding right-of-
way;
(d) Neighborhood group$ or community organizations
officially recognized by the Common Council and
whose boundaries include the subject property; and
(e) other agencies or interested parties as determined
by the City Manager or who specifically requested
notice.
(2) The notice shall include all of the following:
(a) The street address or other easily understood
geographical reference to the subject property;
(b) The criteria for the decision;
(c) The place, date, and location of the hearing;
(d) The nature of the application, the relevant
regulation, including the amount of compensation
claim, and the proposed use or uses which could be
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authorized;
(e) A statement that a copy of the staff report will be
available for inspection at no cost at least 7 days
prior to the hearing and will be provided at
reasonable cost;
(f) A general explanation of the requirements for
submission of testimony and the procedure for
conduct of hearings;
(g) A statement that copies of the application and all
evidence and documents submitted by or on behalf of
the applicant are available for review at no charge,
and that copies can be obtained at cost;
(h) A statement that failure to raise an issue at the
hearing, in person or by letter, or failure to
provide statements or evidence with sufficient
specificity to enable the Common Council to respond
to the issue, precludes an appeal based on that
issue. Specifically, any issue which is intended to
provide a basis for an appeal to the Circuit Court
must be raised before the closing of the Public
Hearings;
(i) The name and telephone number of a city contact
person; and
(j) A brief summary of the local decision making process
for the decision being made.
(3) Notice"of the Public Hearing shall be published in the
newspaper of general circulation in the City not less than four
days before the Public Hearing.
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2.970 Common Council Consideration and Decision.
(1) within 90 days after receipt of a claim application, the
Common Council shall either declare:
(a) The amount of compensation, if any, due to the
applicant; or
(b) The City will, as of the date of the decision,
discontinue to apply the challenged regulation(s) to the
subject property.
(2) Where more than one regulation is being challenged, the
Common Council may provide for a combination of the two remedies
listed above.
(3) The Common Council decision shall be based upon
consideration of whether the public interest would be better
served by compensating the applicant, or by discontinuing to
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apply the challenged regulation(s) to the subject property. The
Common Council decision shall be accompanied by a written
decision that states the facts relied upon in rendering the
decision and explains the justification for the decision based
upon the criterion set forth in this subsection.
(4) within 5 days after the Common Council renders a
decision, the City shall mail notice of the decision to all
parties to the proceeding. The notice shall include a summary of
the decision and an explanation of appeal rights.
(5) Notification of substance of the decision will be
provided to the Lane County Department of Assessment and Taxation
and a Memorandum of the Decision recorded in the Lane County
Deeds and Records.
(6) Nothing herein shall be construed as limiting the city's
power to accept contributions from other parties who are
requesting the City not to discontinue application of the
Ordinance and who desire to contribute to a fund to pay
compensation to the property owner.
2.976 Common Council Decision Effect.
(1) Pursuant to Measure 7, and notwithstanding any other
law, rule, ordinance, resolution, goal or other enforceable
enactment of the City, and notwithstanding any other procedure
for release, exception, or otherwise in the Springfield Municipal
Code, the Common Council is authorized to discontinue application
of a regulation upon a property by Order pursuant to SMC 2.900
through 2.986 when the Common Council, in its discretion, elects
to do so rather than paying compensation to the property owner.
No compensation shall be due if the Common Council discontinues
application of the regulation to the property within 90 days of
the filing of the application for compensation.
(2) Any release of regulation shall be applicable during
such time as the property owner owns the property and shall
automatically cease when the property is owned by a new property
owner. Following termination of ownership of the property by the
property owner, if the regulation that was released from the
property is still in effect, it shall be reinstated and apply to
the property and the new property owner shall, to the maximum
extent permitted by law, bring the property immediately into
compliance with the reinstated regulation.
(3) If the Common Council grants an Order discontinuing
application of a regulation as a means to avoid having to
compensate, or as a means to limit compensation to, an owner or
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owners under Oregon Constitution Article I, Section 18,
subsections (a)-(f), and if, based on an appellate court
interpretation or invalidation of Oregon Constitution Article I,
Section 18, subsections (a)-(h), in the same or another case,
the applying owner was not entitled to compensation in relation
to the regulation from which the release was granted, then th~
release or limited release shall be deemed to have been invalid
and ineffective as of and after the date of the Common Council's
order granting the release. Any such invalidity and
ineffectiveness shall be limited as necessary to avoid the City
being required to compensate the owner under Oregon Constitution
Article I, Section 18, subsections (a)-(f).
(4) Any discontinued application of regulation order granted
by the Common Council under SMC 2.900 through 2.986 shall
terminate automatically on the occurrence of an event which
determines the owner or future owner of the private real
property that is the subject of the release would not be
entitled to compensation under Oregon Constitution Article I,
Section 18, subsections (a)-(f) in relation to the regulation
from which the discontinuance was granted.
2.980 Attorneys Fees for Delayed Compensation. If a claim for
compensation under Section 18, Article I, of the Oregon
Constitution and this Ordinance is denied or not fully paid
within 90 days of the date of filing, Applicants reasonable
attorney fees and expenses necessary to collect the compensation
will be added as additional compensation provided compensation
is awarded to Applicant. If a claim for compensation under
Article I, Section 18 of the Constitution of Oregon and this
Article is denied or not fully paid within 90 days of the date
of filing, and the Applicant commences suit or action to collect
compensation, if the City is the prevailing party in such
action, then City shall be entitled to any sum which a court,
including any appellate court, may adjudge reasonable as
attorney's fees. In the event the prevailing party is
represented by "in-house" ~ounsel, the prevailing party shall
nevertheless be entitled to recover reasonable attorney fees
based upon the reasonable time incurred and the attorney fee
rates and charges reasonably and generally accepted in
Springfield, Oregon for the type of legal services performed.
The 90 day deadline specified herein may be waived upon receipt
of a waiver so stating executed by the Applicant(s).
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2.986 Severability. The provisions of this Ordinance are
severable, and if any phrase, clause or any part of this
Ordinance is found by a court of competent jurisdiction to be
invalid or unenforceable, each and every remaining phrase or
clause shall nonetheless remain in full force and effect."
section 2. It being determined by the Common Council that
amendments to the Springfield Municipal Code providing a process
for claims related to regulatory takings is made necessary by the
passage of Ballot Measure 7, the amendments to Article I, Section
18 of the Constitution of Oregon, which were passed on November
7, 2000 by the electors of the State of Oregon and which takes
effect upon December 7, 2000; and the Council having determined
that such an Ordinance is immediately necessary for the public
health, safety and welfare and that an emergency therefore exists
and that therefore this Ordinance shall take effect immediately
upon its passage by the Council and approval by the Mayor.
Adopted by the Common Council of the city of Springfield this
4 th day of December , 2000 by a vote of 5 in favor
o against.
Approved by the
of December
4th
day
~'A
City Recorder
Mayor of the City of Springfield th~s
,2000. m vW___
Mayor 0
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