HomeMy WebLinkAboutOrdinance 6102 11/29/2004
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November 24, 2004
ORDINANCE NO. 6102
AN ORDINANCE CONCERNING REAL PROPERTY COMPENSATION;
ADOPTING PROCEDURES FOR PROCESSING DEMANDS; ADDING TO CHAPTER 2
"GOVERNMENT AND ADMINISTRATION" OF THE SPRINGFIELD MUNICIPAL
CODE, SECTION 2.900 ET SEQ. "DEMANDS FOR REAL PROPERTY
COMPENSATION" DECLARING AN EMERGENCY; AND
PROVIDING AN IMMEDIATE EFFECTIVE DATE.
THE CITY OF SPRINGFIELD DOES ORDAIN AS FOLLOWS:
Section 1. Chapter 2 "Government and Administration of the
Springfield Municipal Code is hereby amended by addition of the
following sections implementing a process of reviewing Demands
for real property compensation under Oregon Revised Statutes
Chapter 197 as amended by Ballot Measure 37 passed November 2,
2004. .
"DEMANDS FOR REAL PROPERTY COMPENSATION"
Section 2.900 "Title" through 2:995 shall be known as "Demands
for Real Property Compensation"
Section 2.910 "Findings and Purpose"
(1) This Ordinance is intended to implement Ballot Measure 37
approved by the voters of the State of Oregon on November 2,
2004 which amended Oregon Revised Statutes Chapter 197 to
require, under certain specific circumstances, payment of
compensation to present Owner of real property if government
land use regulations reduce fair market property value; and
(2) Ballot Measure 37 provides that in order to receive
compensation, a present Owner of real property must make a
written "Demand for compensation" to the government entity
enacting or enforcing a land use regulation that allegedly
restricts the use of their property and has had the effect
of reducing the fair market value of the property. The
government entity has 180 calendar days after the Owner of
the real property makes the written Demand for just
compensation before the property Owner is allowed to file an
action in Circuit Court for just compensation, and obtain
attorney's fees, expenses, and costs reasonably incurred in
addition to just compensation; and
(3) Ballot Measure 37 authorizes the City to adopt and apply
procedures for processing Demands for just compensation, but
complying with the City procedures is not a prerequisite to
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filing a just compensation Demand in Circuit Court after 180
calendar days from making a written Demand for just
compensation. In addition, the present Owner of real
property's failure to file an application for a land use
permit may not serve as grounds for dismissal, abatement or
delay of a just compensation Demand; and
(4) Ballot Measure 37 requires payment of just compensation for
any reduction in fair market value of the real property
resulting from enactment or enforcement of the land use
regulation as of the date the Owner makes written Demand for
just compensation; and
(5) Ballot Measure 37 also provides that in lieu of payment of
just compensation a City may, in its discretion, decide to
modify, remove or not apply the land use regulation causing
the alleged reduction in fair market value instead of
payment; and
(6) Because Ballot Measure 37 imposes an unfunded duty on the
City to review Demands for compensation and make decisions
on disposition of those Demands, Ballot Measure 37 and the
public interest requires that such determinations be based
on substantial factual information and analysis, provided by
a present real property Owner at the time a written Demand
is made for compensation; and
(7) It is in the best interests of the City to establish a
process to consider such Demands in a timely manner by
establishing, among other things, a procedure that requires
a minimum amount of factual and analytical information be
included with the Demand for compensation at the time the
City accepts any written Demand for compensation.
(8) These provisions establish a prompt, open, thorough and
consistent process that enables property Owners an adequate
and fair opportunity to present their Demands to the City;
informs the public of the Demands made and their resolution;
preserves and protects limited public funds; and establishes
a record of the City's decision capable of circ0it court
review.
(9) In interpreting this Ordinance it is intended that except as
may be specifically modified by Ballot Measure 37, the City
has all powers of Chapter II of the 2001 Springfield
Charter.
Section 2.920 Definitions. As used in this Ordinance, the
following words and phrases mean:
(1) Appraisal. Means a written statement prepared by an
appraiser licensed by the Appraiser Certification and
Licensure Board of the State of Oregon pursuant to ORS
Chapter 674. In the case of commercial or industrial
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property, the term "Appraisal" additionally means a written
statement prepared by an appraiser holding ~heMAI
qualification, as demonstrated by written certificate.
(2)
City Manager. The City Manager of the City of Springfield,
or his or her designee. Designee may be one or more
persons.
(3)
Demand. A Demand means the "written Demand for compensation"
required to be filed by an Owner of "real property under ORS
Chapter 197 as amended by Ballot Measure 37, passed November
2, 2004.
(4)
Exempt Land Use Regulation. A land use regulation that:
(a) Restricts or prohibits activities commonly known and
historically recognized as public nuisances under
common law, including but not limited to Springfield
Municipal Code Chapter 5 as amended from time to time
and the criminal laws of the State of Oregon and the
City of Springfield;
(b) Restricts or prohibits activities for the protection of
public health and safety; such as fire and building
codes, health and sanitation regulations, solid or
hazardous waste regulations, and pollution control
regulations;
(c) Is required in order to comply with federal law;
(d) Restricts or prohibits the use of property foi the
purpose of selling pornography or performing nude
dancing; or
(e) Was enacted prior to the date of acquisition of the
property by the Owner or a family member of the Owner
who owned the property prior to acquisition or
inheritance by the Owner, whichever occurred first.
(5) Family Member. Includes the wife, husband, son, daughter,
mother, father, brother, brother-in-law, sister, sister-in-
law, son-in-law, daughter-in-law, mother-in-law, father-in-
law, aunt, uncle, niece, nephew, stepparent, stepchild,
grandparent, or grandchild of the Owner of the property, an
estate of any of the foregoing family members, or a legal
entity owned by anyone or combination of these family
members or the Owner of the property.
(6) Land Use Regulation. Includes:
(a) Any statute regulating the use of land or any interest
therein;
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(b) Administrative rules and goals of the Land Conservation
and Development Commission;
(c) Local government comprehensive plans, zoning
ordinances, land division ordinances,and
transportation ordinances;
(d) Metropolitan service district regional framework plans,
functional plans, planning goals and objectives; and
(e) Statutes and administrative rules regulating farming
and forest practices.
(7) Owner. The present Owner or Owners of the property, or any
interest therein.
(8) Valid Demand. A Demand submitted by the Owner of real
property pursuant to Springfield Municipal Code Sections
2.900 through 2.995 that is subject to a land use regulation
adopted or enforced by the City that restricts the use of
the private real property in a manner that reduces the fair
market value of the real property.
Section 2.925 Optional Pre-Demand Conference. Befo~e submitting
a Demand, the Owner may request and attend a Pre-Demand
Conference with the City Manager to discuss the Demand. The
Owner is encouraged to contact the City Manager to schedule a
conference at mutual convenience. The Optional Pre-Demand
Conference is to encourage the Owner to provide a summary of the
Owner's Demand to the City Manager and to enable the City Manager
to provide information to the Owner about procedures and
regulations that may affect the demand.
Section 2.930 Demand Application. An Owner seeking to file a
Demand under SMC Sections 2.900 through 2.995 shall be the
present Owner ot present Owners of the property that is the
subject of the Demand. The Demand shall be filed with the City
Manager's office, or other City office if so designated by the
City Manager. The Owner is responsible for the completeness and
accuracy of the application and ~upporting data. Unless
specifically waived by the City Manager, the following
information must be submitted on the Dema~d:
(1) A completed application form;
(2) (a) The name, mailing address, telephone number and
authorization signatures for all the property Owners or
contract Owners; and the designated Owner or agent who
is the Owner's designated representative regarding the
processing of the application;
(b) Every Lessee and Lessor of the property and their
mailing address and telephone number.
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(3) A legal description and tax lot number of the property as
well as a street address for the property (if any);
(4) A title report issued within 30 calendar days of the
application's submittal,including:
(a) Title history,
(b) A statement of the date the Owner acquired Ownership of
the property,
(c) The Ownership interests of all Owners of the property,
(d) Every person or entity holding alien against or
security interest in the property,
(e) Every person or entity holding a future, contingent, or
other interest of any kind in the property;
(5) A statement specifically identifying all the sections of the
Springfield Municipal Code, Springfield Development Code, or
other current land use regulation that allegedly restrict(s)
the use of the real property and allegedly causes a
reduction in the fair market value of the property;
(6) A statement specifying:
(a) The proposed use of the property,
(b) The amount of the Demand and the fair market value of
the property before and after application of the
identified land use regulation, and
(c) Why the Owner is entitled to compensation under the
requirements of the provisions added to ORS Chapter 197
by Ballot Measure 37 (November 2, 2004). The
explanation must address the criteria set forth in SMC
Section 2.940(1);
(7) An appraisal by an appraiser licensed by the Appraiser
Certification and Licensure Board ~f the State of Oregon
supporting the amount of the Demand that addresses the
following issues:
(a) The appraisal must expressly note all existing
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 must expressly address and indicate the
amount of the alleged reduction in the fair market
value of the property at the time a complete Demand is
submitted to the City by showing the difference in the
fair market value of the property resulting from
enactment or enforcement of each of the identified
regulations individually identified in the Demand and
after the application of all of the identified
regulations cumulatively.
(c) The appraisal must expressly consider the effect of the
aforesaid Ballot Measure 37 on the availability of
other real property including the extent to which the
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supply of such other real property is or will be
increased due to the non-enforcement, discontinuance,
repeal or waiver of regulation~ following the passage
of Ballot Measure 37.
(8) Copies of any leases or Covenants, Conditions and
Restrictions ("CCR's) applicable to the real property, if
any, that impose restrictions on the use of the property.
(9) Written permission for access to the property by the City
Manager including but not limi~ed to agents or appraisers
necessary to evaluate and appraise the property and the
Demand for purposes of determining whether or not
regulation(s) have had the effect of reducing the fair
market value of the property.
(10) A statement indicating to whom any compensation determined
must be paid.
(11) (a) A Demand shall include payment of a fee in the amount
established by separate Resolution of the City Council
to at least partially cover the City's cost of
processing the Demand. The City Manager may waive the
fee if the Owner is unable to pay the fee or for other
purpose necessary for the public health, safety and
welfare.
(b) The City Manager shall maintain a record of the City's
actual cost of processing the Demand, including the
cost of obtaining any information required by SMC
Section 2.930 which the Owner does not provide to the
City.
(c) In the event that the fee is not sufficient to cover
all of the City's costs or in the event. the Owner fails
to pay any fees not waived, then the Owner shall pay
the fee or balance owed, if any, upon receipt of an
appropriate billing statement from the City.
(d) If the fee paid is more than the amount of the City's
actual costs in processing the Demand, then the excess
shall be returned to the Owner.
(e) 'In the event that the fee is not paid in full within 30
calendar days after receipt of billing, the City may
take any enforcement actions provided by law to collect
such fee including but not limited to filing a lien on
the property.
(f) If a Demand is determined to be a Valid Demand the City
shall reimburse the Owner for any fee paid.
2.935 Completeness Review. The City Manager shall review a
Demand application and, within 10 business/working days of its
receipt, notify the Owner as to whether the application is
complete.
(1) If the City Manager determines that the application is
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complete, the City Manager shall begin the application
review process.
(2) If the City Manager determines that the application is
incomplete, the City shall advise the Owner in writing of
the necessary missing information. Within 10 calendar days
of the mailing of a notice of missing information, the Owner
may submit to the City a written statement indicating either
an intent to submit the missing information or a refusal to
submit the missing information. A statement indicating an
intent to submit missing information shall constitute a
waiver of the 180 calendar day deadline contained in the
provisions added to ORS Chapter 197 by Ballot Measure 37
(November 2, 2004) for a period of time equal to the time it
takes to supply the missing information. The City shall
accept the application and begin review either upon:
(a) Receipt of all of the missing information requested by
the City; ~
(b) Receipt of a written statement from the Owner
indicating that the missing information will not be
provided; or
(c) The 20th calendar day after mailing the notice of
missing information referred to above, if the Owner has
not responded; WHICHEVER SHALL FIRST OCCUR.
2.940 Application Review Criteria.
(1) The City Manager shall review any Demand for compensation.
The City Manager may establish procedures and take all
actions necessary to facilitate such review which are
consistent with Section 2.910 "Findings and Purpose" of this
Ordinance. An application qualifies for compensation
consideration if the Owner has shown that all of the
following criteria are met:
(a) The City has either enacted or enforced a land use
regulation that restricts the use of private real
property or any interest therein;
(b) The restriction on use has the effect of reducing the
fair market value of the subject property or any
interest therein;
(c) The identified land use regulation was enacted,
enforced or applied after the current Owner of the
property (the Owner) became the Owner; and
(d) The identified regulation is not an exempt regulation
as defined in SMC Section 2.920(4).
(2) If the Owner does not qualify for compensation
consideration, the City Manager shall so inform the Owner.
2.942 Initial Notice of Demand and Recommendation by City
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Manager.
(1) The City Manager shall mail an initial notice of the Demand
to:
(a) The Owner and to all Owners of record and occupants Df
the property,
(b) All Owners of property within three hundred (300) feet
of the property that is subject of the notice, as
listed on the most recent property tax assessment roll
where such property is located,
(c) Notice shall also be provided to anyone with any record
interest in the property, including lien holders,
trustees, lessors, or lessees as listed on the
application, and
(d) Additional mailed notice shall be sent to the Oregon
Department of Land Conservation and Development, Oregon
Department of Justice, Lane Council of Governments and
such others as the City Manager may determine.
(2) The initial notice under this section shall:
(a) State the basis of the Demand, the amount of the
compensation sought and the regulation(s) that causes
the compensation to be alleged to be due.
(b) Identify the property by the street address or other
easily understood geographical reference;
(c) State that persons noticed may provide written comments
on the Demand,
(d) Provide the date written comments are due,
(e) State that a public meeting may be requested, and, if a
meeting has been requested pursuant to SMC Section
2.942(4), the date, time and location of the meeting
and where oral and written comments may be provided.
(f) Include a general explanation of the requirements for
submission of written comments or, if a public meeting
is to be held, the requirements for submission of
comments and the procedure for conduct of public
meetings;
(g) Identify the City representative and telephone number
to contact to obtain additional information; and
(h) State that a copy of the Demand and the supporting
documents submitted by the Owner are available for
inspection at no cost, and that copies will be provided
at reasonable cost.
(3) If there is no request for a public meeting, written
comments regarding a Demand may be submitted to the City
Manager. The Owner shall have an additional 14 calendar
days after the deadline set in paragraph (2d), above, to
respond to any written comments received by the City
Manager. It'is the duty of the Owner to determine if
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comments have been received by the City Manager.
(4) The City Manager shall hold a public meeting upon not less
than 10 calendar days notice to receive public comment on
the Demand:
(a) If requested by the Owner in the initial Written
Demand; or
(b) If requested by another person entitled to notice under
SMC Section 2.942(1) of this section, provided that
person makes the request within 7 calendar days from
the date provided under SMC Section 2.942 (2) (e) of this
section; or
(c) If the City Manager determines that such a public
meeting is in the public inteiest. If the Owner
requests a public meeting, the initial notice under SMC
Section 2.942(1) and (2) of this section shall provide
the date, time and location of the public meeting. If a
public meeting is requested by other persons entitled
to notice a new notice by the City Manager shall be
issued to the remaining persons entitled to notice
giving the date, time and location of the public
meeting.
(5) Conduct of requested public meeting:
(a) All documents or comments relied upon by the Owner
shall be submitted to the City Manager as a part of the
Demand. Persons other than the Owner may submit
documents or evidence at the public meeting.
(b) Any materials to be used at the public meeting shall be
available at least 7 calendar days prior to the
meeting.
(c) The notice provisions of this section shall not
restrict the giving of notice by other means, including
posting, newspaper publication, radio and television.
(6) The City Manager may, in the City Manager's discretion,
retain the services of an Appraiser to appraise the property
and evaluate the Demand to assist in determining the
validity of a Demand.
(7) Within 21 calendar days of the close of the period for
written comment or the conclusion of the public meeting if
one is requested, the City Manager shall make a
recommendation to the City Council, which includes but is
not limited to:
(a) Applying the standards of Oregon Revised Statutes
Chapter 197 as amended by Ballot Measure 17, passed
November 2, 2004, to the City Council based on all of
the information presented.
(b) Whether modifying, removing or not applying the
application of a land use regulation is necessary to
avoid entitlement to compensation under the provisions
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of such act, and if so the extent needed to avoid the
entitlement to such compensation and the amount of
compensation to which the Owner would be entitled
without modifying, removing or not applying the
application of a land use regulation.
(c) Comparing the public benefits from the application of
the land use regulation to the private property with
the public burden of paying the required compensation
to the Owner if a modification or waiver of the land
use regulation is not granted taking into consideration
the financial resources of the City for such Demands.
(d) The recommendation may include but is not limited to
whether compensation shall be paid, the amount of
compensation to be paid, and whether any specific land
use regulation should be modified, removed or not
applied to the property.
(e) Should compensation be recommended by the City Manager,
the recommendation to the City Council may include
establishing any relevant conditions of approval for
compensation.
(f) Recommending any of the actions set forth in SMC
Section 2.945.
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2,945 City Council Public Hearing Notice. The City Manager shall
schedule a public hearing with the City Council upon completion
of the ~ritten recommendation for the Demand.
(1) The City Manager shall mail written notice of the
application to all of the following not less than 20
calendar days before the public hearing:
(a) The Owner;
(b) Other Owners of the property and anyone with any record
interest in the property, including lien holders,
trustees, renters, or lessees, as listed on the
application;
(c) All individuals and entities that provided written
comments and/or participated in th~ City Manager's
initial notice including the public meeting, if any.
(d) Owners of record on the most recent property tax
assessment roll of properties located within 300 feet
of the perimeter of the property;
(e) Neighborhood groups or community organizations
officially recognized by the City Council and whose
boundaries include the property; and
(f) Other agencies or interested parties as determined by
the City Manager.
(2) The public hearing notice shall include all of the
following:
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(a) 'The street address or other easily understood
geographical reference to the property;
(b) The criteria for the Council decision;
(c) The place, date and location of the hearing;
(d) The nature of the application and the proposed use or
uses which could be established on the property if the
identified land use regulation is waived or modified
with respect to the property;
(e) A general explanation of the requirements for
submission of testimony and the procedure for conduct
of hearings.
(f) The name and telephone number of a City contact person;
(g) A brief summary of the local decision making process
for the decision being made.
(h) The recommendation of the City Manager.
2.947 City Council Consideration and Decision.
The hearing before the City Council shall be based upon the
recommendation of the City Manager and all information and
comments submitted to the City Manager and other materials
provided by the City Manager relevant to the application and all
other information and comments provided to the City Council
subsequent to the City Manager's recommendation. Upon conclusion
of any public hearing on a Demand Application and the City
Manager's recommendation and prior to the expiration of 180
calendar days from the date a Demand was filed, the City Council
shall take one or more of the following actions on the Demand:
(1 )
the Demand based on, but not limited to, anyone or
of the following findings:
The land use regulation does not restrict the use of
the private real property;
The fair market value of the property is not reduced by
the enactment, enforcement or application of the land
use regulation;
The Demand was not timely filed under Oregon Revised
Statutes Chapter 197, as amended by Ballot Measure 37,
Passed November 2, 2004, for a reason other than those
provided herein;
The Owner failed to comply with the requirements for
making a Demand as set forth in this article;
The Owner is not the present p~operty Owner,or the
property was not owned by a family member if that is
required for compensation, or was not the property
Owner at the time the land use regulation was enacted,
enforced or applied;
The land use regulation is an exempt regulation as
Deny
more
(a)
(b)
(c)
(d)
(e)
(f)
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defined in Oregon Revised Statutes Chapter 197, as
amended by Ballot Measure 37, Passed November 2, 2004;
(g) The land use regulation in question is not an enactment
of the City;
(h) The City has not taken final action to enact, enforce
or apply the land use regulation to the property;
(i) The Owner is not entitled to compensation under Oregon
Revised Statutes Chapter 197, as amended by Ballot
Measure 37, Passed November 2, 2004, for a reason other
than those provided herein.
(2) Declare:
(a) The Demand is a valid Demand and the amount of
compensation, if any, due to the Owner of the property;
or
(b) The Demand is a valid Demand and the City will, as of
the date of the final City Council decision modify,
remove or choose not to apply the identified land use
regulation(s) in a manner which reduces the value of
the property and allows the Owner to use the property
for a use permitted at the time the Owner acquired the
property.
(3) Any decision to award compensation, either in the amount
requested, or in some other amount supported by the evidence
in the record, is subject to the City Council's sole
discretion as to the availability and appropriation of funds
for that purpose.
(4) The City Council may establish any relevant conditions of
approval for compensation,. should compensation be granted,
or for any other action taken under SMC Section 2.947 of
this Article.
(5) Determine that the Demand is a valid Demand and the City
should acquire the property or a portion thereof in fee or
acquire an interest in the property including but not
limited to acquisition of an easement.
(6) Take such other actions as the City Council deems
appropriate consistent with Oregon Revised Statutes Chapter
197, as amended by Ballot Measure 37, Passed November 2,
2004.
(7) If the City Council removes, modifies, or does not apply the
identified land use regulations, it may in its discretion
put back into effect with respect to the property, all of
the land use regulations in effect at the time the Owner
acquired the property.
(8) The Owner shall bear the burden of proof relating to the
Demand and entitlement to just compensation. The City shall
bear the burden of proof to show ,that the regulation is
exempt under Oregon Revised Statutes Chapter 197, as amended
by Ballot measure 37, passed November 2, 2004. The standard
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of proof shall be by a preponderance of the evidence.
(9) The final decision on a Demand which. is the subject of a
City Manager recommendation shall be made by the City
Council after review under the standards of Oregon Revised
Statutes Chapter 197, as amended by Ballot Measure 37,
Passed November 2, 2004, and the criteria enumerated in SMC
Sections 2.940, 2.945 and 2.947 above. The Council's
decision shall be based upon consideration of whether the
public interest would better be served by granting
compensation, the amount of compensation, if any, whether
any exceptions to the requirement for compensation apply or
whether the regulation should be modified, removed or deemed
not to apply to the property. Within 7 calendar days after
the City Council renders a decision on the Demand, a copy of
the City Council decision shall be sent by mail to the Owner
and to each individual or entity that participated in the
City Manager or City Council review process, provided a
mailing address was provided to the City as part of the
review process.
(10) A copy of the City Council decision shall be recorded in
Lane County Deeds and Records.
2.950 Conditions of Approval, Revocation of Decision and Transfer
of Approval Rights.
(1) Failure to comply with any condition of approval established
pursuant to SMC Section 2.947 is grounds for revocation of
the approval of the compensation for the Demand, grounds for
recovering any compensation paid and grounds for revocation
of any other action taken under SMC Section 2.947 of this
Article.
(2) In the event the Owner, or the Owner's SUCCessor in
interest, fails to fully comply with all conditions of
approval or otherwise does not comply fully with the
conditions of approval, the City may institute a revocation
or modification proceeding before the City Council under the
same process for City Manager and City Council review of a
Demand vnder this Article.
2.953 City Council Decision Effect.
(1) Pursuant to Ballot Measure 37 (November 2, 2004), 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 City
Council is authorized to modify, remove, or not apply
application of a identified land use regulation by Order
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pursuant to SMC Sections 2.900 through 2.995 when the City
Council, in its discretion, elects to do so rather than
paying compensation to the property Owner.
(2) Except as specified in 2.953(3) and (4) unless otherwise
stated in the City Council's decision, any action taken
under this Article to remove, modify or not apply
application of an identified land use regulation runs with
the property and is transferred with ownership of the
property. All conditions, time limits or other restrictions
imposed with the approval of a Demand will bind all
subsequent owners of the subject property.
(3) If the City Council grants an Order modifying, removing or
not applying application of an identified land use
regulation as a means to avoid having to compensate, or as a
means to limit compensation to, an Owner under the
provisions added to ORS Chapter 197 by Ballot Measure 37
(November 2, 2004), and if, based on an appellate court
interpretation or invalidation of the provisions added to
ORS Chapter 197 by Ballot Measure 37 (November 2, 2004), in
the same or any other case, the applying Owner was not
entitled to compensation in relation to the modified,
removed, or not applied identified land use regulation, then
the Order shall be deemed to have been invalid and
ineffective as of and after the date of the Council's Order.
Any such invalidity and ineffectiveness shall be limited as
necessary to avoid the City being required to compensate the
Owner under the provisions added to ORS Chapter 197 by
Ballot Measure 37 (November 2, 2004).
(4) Any modification, removal or not applied application of an
identified land use regulation Order granted under SMC
Sections 2.900 through 2.995 shall terminate automatically
on the occurrence of any event which determines the Owner or
future Owner of the private real property that is the
subject of the modified, removed, or not applied application
of a identified land use regulation Order would not be
entitled to just compensation under the provisions added to
ORS Chapter 197 by Ballot Measure 37 (November 2, 2004) in
relation to the land use regulation made inapplicable by the
City Council Order.
2.955 Ex Parte Contacts, Conflict of Interest and Bias.
The following rules govern any challenges to the City Manager's
or member of the City Council's participation in the review and
recommendation motion, or hearings regarding Demands:
(1) Any factual information obtained by the City Manager or a
member of the City Council outside the information provided
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by City staff, or outside of the formal written comments
process or hearing will be deemed an ex parte contact. The
City Manager ora member of the City Council that has
obtained any material factual information through an ex
parte contact must declare the content of that contact, and
allow any interested party to rebut the substance of that
contact. This rule does not apply to contacts between City
staff and .the City Manager or member of the City Council.
(2) Whenever the City Manager or a member of the City Council,
or any member of their immediate family or household, has a
financial interest in the outcome of a particular Demand or
lives within the area entitled to notice of the Demand, that
City Manager or member of the City Council shall not
participate in the deliberation or decision on that
appiication.
(3) All decisions on Demands must be fair, impartial and based
on the applicable review standards and the evidence in the
record. Any City Manager or member of the City Council who
is unable to render a decision on this basis must refrain
from participating in the deliberation or decision on that
matter.
2.960 Attorney Fees On Delayed Compensation.
If a Demand under Oregon Revised Statutes Chapter 197, as amended
by Ballot Measure 37, Passed November 2, 2004, and this Article
is denied or not fully paid within 180 calendar days of the date
of filing a completed Demand, the Owner's reasonable attorney
fees and expenses necessary to collect compensation will be added
as additional compensation provided compensation is awarded to
the Owner. If such Demand is denied, not fully paid, or other
action taken under Oregon Revised Statutes Chapter 197, as
amended by Ballot Measure 37, passed,November 2, 2004, within 180
calendar days of the date of filing a completed Demand, and the
Owner 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.
2.965 Availability of Funds to Pay Demands.
Compensation pursuant to SMC Sections 2~900 through 2.995 can
only be paid based on the City Council's discretion and
determination of the availability and appropriation of funds for
this purpose.
2.970 Severability.
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If any phrase, clause, or other part or parts of this Article is
found to be invalid by a court of competent jurisdiction, the
remaining phrases, clauses and other part or parts shall remain
in full force and effect.
2.975 Applicable State Law, No Independent Rights Created by this
Article.
For all Demands filed the applicable State Law is those portions
of Oregon Revised Statutes Chapter 197 added or made a part of
said Chapter by Ballot Measure 37, passed on November 2, 2004
and/or as amended, modified or clarified by subsequent amendments
or regulations adopted by the Oregon State Legislature or Oregon
State Administrative Agencies. Any Demand that has not been
processed completely under this Article shall be subject to any
such amendments, modifications, clarifications or other actions
taken at the state level and this Artic;Le shall be read in a
manner so as not to conflict with such amendments, modifications,
clarifications or other actions taken at the state level. This
Article is adopted solely to address Demands filed under the
authority of those provisions of Oregon Revised Statutes Chapter
197 added or made a part of said Chapter by Ballot Measure 37,
passed November 2, 2004. Except as may be specified in SMC
Section 2.980, no rights independent of said provisions are
created by adoption of this Article.
Section 2.980. Private Cause of Action. .If the City Council's
approval of a Demand by removing or modifying a land use
regulation causes a reduction in value of other property located
in the vicinity of the property, the Owner of the other property
shall have a cause of action in the appropriate 6regon Circuit
Court to recover from the Owner of the property subject to the
Demand in the amount of such reduction in value. A person who
recovers for a reduction in value of property under this section
shall also be entitled to recover attorney fees and disbursements
from the Owner of the property subject to the Demand. This
section does not create a cause of action against the City of
Springfield.
2.985 Timelines/Deadlines. Except .as may be required by those
provisions of Chapter 197 added .or made a part of said chapter by
Ballot Measure 37 (November 2, 2004), all timelines and deadlines
imposed by this chapter are for the convenience in the City's
process to address the Demands made under such law, and may, in
the discretion of the City, be waived by the City Manager or City
Council.
Section 2.990 Notification. The failure of a person entitled to
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notite to receive notice as provided in .this section shall not
invalidate such proceedings if the City can demonstrate by
affidavit that such notice was given.
Section 2.995 Interpretation. This Article shall be interpreted
in a manner consistent with Oregon Revised Statutes Chapter 197,
as amended by Ballot Measure 37, Passed November 2, 2004, and
other implementing statutes or regulations and as interpreted by
Oregon appellate courts.
Section 2. The City Recorder~ at the request of or with the
concurrence with the City Attorney, is authorized to
administratively correct any references contained herein or other
provisions of the Springfield Municipal Code to address
provisions added~ amended or repealed herein.
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Section 3. Emergency Clause and Effective date. This Ordinance,
being essential to the preservation of the health, safety,
welfare and financial integrity of the City with amendments to
Oregon Revised Statutes Chapter 197, from Ballot Measure 37,
passed November 2, 2004, becoming effective on December 2, 2004,
and it is essential to have a process in place for reviewing
Demands under the law on the effective date of Ballot Measure 37,
an emergency is hereby declared to exist and this Ordinance is
effective on December 2, 2004.
Adopted by the Common Council of the City of Springfield this
29th day of November , 2004 by a vote of 5 in
favor 0 against. (1 absent - Ballew)
Council President
Approved by the Mayo~ of the City of Springfield this 29th day of
November , 2004.
~~~
M-a-ye-F . Counc' President
ATTEST:
CitY~d~
. REVIEWED & APPROVED
,\5 TO FORM ~
--.j:n~ ,.... ...J "Cf.\ \~
()ATE: \\ \~\,~ \'2.0(\'i
OFFICE OF CITY ATTORNEY
BALLOT MEASURE 37 ORDINANCE
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