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HomeMy WebLinkAboutOrdinance 5970 12/04/2000 . (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 ORDINANCE PAGE -1- . . . . 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 ORDINANCE PAGE -2- . . . 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 ORDINANCE PAGE -3- . . . 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 ORDINANCE PAGE -4- . 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. . 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 . ORDINANCE PAGE -5- . . . 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; ORDINANCE PAGE -6- . . . (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 ORDINANCE PAGE -7- .' . . 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 ORDINANCE PAGE -8- . 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. . 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 . ORDINANCE PAGE -9- . . . 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 ORDINANCE PAGE -10- . . . 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). ORDINANCE PAGE -11- . . . . .., , .. 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 ORDINANCE PAGE -12-