HomeMy WebLinkAboutCorrespondence PLANNER 11/17/2007
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SPR fiELD
SUITE 0, 223 A STREET
SPRINGFIELD, OR 97477
(541) 746-9621
FAX (541) 746-4109
WWW CI spnngfleld or us
November 16, 2007
McKay Investmen Company, LLC
c/o James W Ickerman
Gleaves, eanngen Potter & Scott LLP
975 Street
E ene, OR 97440-1147
c/o Glenn Am
Lane Po
142 Ifth Avenue, SUite 4100
S ttle, WA 98101
RE McKay Investment Company, LLC's Measure 37 Claim
Dear Sirs
This letter IS wntten regarding the City of Spnngfield's position as to the effect of Measure 49
on McKay Investment Company, LLC's C'McKay Investments") waiver Issued under Measure 37
As you know, Measure 49 was approved by Oregon voters In the November 6, 2007 election
Measure 49 Significantly alters the eXisting law enacted under Ballot Measure 37 and any future
claims that may be brought under Measure 37 In addition, Measure 49 speCifically addresses
claims that were prevlouslv filed under Measure 37.
To prOVide some background, McKay Investment filed Its Measure 37 claim on November 30,
2006, With respect to property located at 1650 Centennial Boulevard In Spnngfield, Oregon
More speCifically, McKay Investment requested a waiver or compensation pertaining to land use
regulations that restnct Its ability to construct a major commercial development on the subJect
property On May 21, 2007, the City of Spnngfield approved Its claim, and granted a waiver of
speCific land use regulations The City formally adopted a resolution authonzlng the City
Manager to modify, remove, or waive provIsions of Articles 40 and 41 of the Spnngfield
Development Code
Although McKay Investment has received a Measure 37 waiver, the first question IS whether
McKay Investment has taken suffiCient steps to have acqUired a vested nght to develop the
subject property To acquire a- vested nght, the property owner must take substantial steps
toward beginning construction, or Incur substantial costs toward completing the proJect 1
Additionally, the owner must have been Issued all necessary bUilding and development permits,
or commenced and continued construction to a pOint where either a local development code or
court would find It ineqUitable to revoke or modify the development 2 Consldenng that McKay
Investment has not proceeded With development of the property since It received the waiver,
Its property nghts have not vested
Since McKay Investment does not have a vested property nght, the next question IS whether
McKay Investment has a valid claim under Measure 49 Section 5 of Measure 49 proVides that
/1117/1
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1 Clackamas County v Holmes, 265 Or 193, 197 (1973)
2Id I
Date Received
Planner MM
"~7Ct&~"
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McKay Investment Company
November 16, 2007
Page 2
eXisting Measure 37 claimants are defined as those who filed claims on or before the date of
the 2007 legislature's adjournment (June 28, 2007) Section 5(2) further provides that eXisting
Measure 37 claimants without vested rights who own property In areas wholly or partially Within
an urban growth boundary ("UGB'') are entitled to "Just compensation" as set forth In Section 9
ConSidering that McKay Investment's Measure 37 claim was filed prior to June 28, 2007 and
concerns property located Within Springfield's UGB, McKay Investment qualifies as an eXisting
M37 claimant and IS subject to the provIsions of Section 9
On further examination of Section 9 and other applicable sections, It IS eVident that Measure 49
speCifically limits the application of Measure 37 to regulations that restrict the reSidential use of
private real property As such, McKay Investment IS not entitled to JUst compensation under
Section 9, which proVides relief for eXisting M37 claimants only If, Inter alia, the "property IS
zoned for reSidential use" Therefore, McKay Investment does not have a valid Measure 37
claim as of Measure 49's effective date
Based on the fact that the subject property IS not zoned for reSidential use, the claimant no
longer has a valid waiver under Measure 37
If you believe that thiS IS not an accurate interpretation of Measure 49 and/or Its application to
thiS particular claim, I would be happy to review any facts or authOrities you may choose to
prOVide Please feel free to contact me at (541) 746-9621
Bill Grlle and Mark Metzger have asked that I Inform you that they would be willing to talk With
you about another alternative for siting the Home Depot on thiS property Please feel free to
contact them dl/'ectly
Thank you for your attention to thiS matter
Sincerely,
LEAHY & COX
~~ L~\~
Joe Leahy
cc Bill Grlle
Gary Karp
Mark Metzger
Greg Matt
Date Received
Planner MM
lilt 1 ( t>7
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CITY OF SPRINGFIELD, OREGON
Resolution No.07-18
A Resolution Concerning McKay Investment Company's
Demand For Real Property Compensation
WHEREAS on November 2, 2004, the voters of the state of Oregon approved
Ballot Measure 37 and thereby amended ORS Chapter 197 to requIre, under certam
specific circumstances, payment of compensatIOn to the present owner of real property If
government land use regulatIOns reduce fmr market property value, and,
WHEREAS Ballot Measure 37 authonzes the city to adopt and apply procedures
for processing demands for Just compensatIOn, and,
WHEREAS, the CIty CouncIl adopted Ordmance No 6102 [effectIve December 2,
2004] addmg SectIOns 2 900 through 2 995 to the Spnngfield Muruclpal Code prescnbmg
how to process demands for compensatIOn under Ballot Measure 37, and
WHEREAS SectIOn 2930 of the Spnngfield MuniCipal Code reqUires that In
order to receIve compensatIOn, a present owner of real property must make a wntten
"demand for compensatIOn," prOViding the city With pertinent informatIon needed to
determine the vahdlty of the claIm and the alleged reductIOn In fau market value that IS
attnbutable to a land use regulatIon applted by the City, and,
WHEREAS, McKay Investment Company LLC, filed a Ballot Measure 37 demand for
compensatIon under the provIsIons ofMumclpal Code SectIOn 2 900 on December 1,2006,
alleging that the actIOn to deSIgnate and rezone theIr property at the intersectIOn of Mohawk and
CentennIal Boulevards from Major RetaIl CommerCial to Nodal Development Area-Mlxed-Use
CommerCIal, has reduced the fair market value of the property, and,
WHEREAS the CIty Manager has mvestlgated the vahdlty of the delnand claIm and has
made findings WIth respect to the procedures and cntena for deCIding the vahdlty of a claim, and,
WHEREAS notIce of the McKay Investment Company demand claim was mailed to all
property owners reSIdents WIthin 300 feet of the subject property and receIved no comment
during the deSignated comment penod, and,
>, - _ _.. I_WHEREAS, the CIty Manager has prepared and subm IttOO a recommendatIOn concermng
....- -~_ J;:1'.,I;.... j
the McKa~(Iit'<-estm"e'nt Company to the City CounCil, and, D &( I
,\ VI 19'1rt6,': ate Received V' /1 6/
Planner MM
RESOLUTION
Page -1-
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WHEREAS, the CIty CouncIl held a public hearing on the McKay Investment Company
demand chum on May 21, 2007 and has conSIdered the testImony receIved at that hearing
NOW, THEREFORE, BE IT RESOLVED by the Common Councll of the City of
Spnngfield as follows
The Common Council hereby finds and determines that the McKay Investment
Company demand for real property compensal1on to be a valId claIm and authonzes
the CIty Manager to modIfy, remove, or not apply the elements of ArtIcle 40
and Artlcle 41 of the Spnngfield Development Code that are the basIS for the
demand claIm, rather than paYIng compensatIOn to the property owner,
McKay Investments Company
2 ThIS ResolutIOn shall take effect upon the slgnmg of a Development Agreement
negotIated by the City Manager or hiS deSignate, between the CIty of Spnngfield and
McKay Investment Company, LLC speCifically defmmg those development
standards from ArtIcle 40 and ArtIcle 41 that WIll be retamed or modified, and those
not to be enforced on the subject site
Adopted by the Common Councll of the City ofSpnngfield, Oregon, and approved by
the ~ay~e of..2..,for-ando against, thIS 21st day of May, 2007
~JIl _
May<f V
ATTEST
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City Recor~r
Ii[V~!:WH: ~ APPROVED
AS TO FORM
..}~"C"-t''''''' J L(1U"\'.......I_
DA.E OS' III \ 01 ,
OFF.CE OF CITY ATTORNEY
Date Received
Planner. MM
~-Y~
RESOLUTION
Page -2-
DEVELOPMENT AGREEMENT
Resolution No 15-03
This DEVELOPMENT AGREEMENT. hereafter "Agreement", IS entered Into this
_day of . 2007 (the "Effective Date") by and between the CITY OF
SPRINGFIELD. hereinafter "City". and McKay Investment Company LLC. hereinafter
"Applicant". In accordance with Resolution No 05-13 A Resolution Concerning McKay
Investment Company's Demand for Real Property Compensation. adopted by the Common
Council for the City of Springfield on the 21st day of May. 2007
RECITALS
WHEREAS. on the 21st day of May. 2007. the City Council adopted a resolution
approving a Demand for Real Property Compensation submitted by the Applicant for the
purpose of the follOWing
CITY JOURNAL NUMBER lRP2006-00033 Demand for Compensation Under Ballot Measure
37. requesting relief from land use regulations applied to the Applicant's property at 1650
Centennial Boulevard. since January 1. 2000 These regulations Include the application of the
Nodal Development Overlay designation (Article 41 of the Springfield Development Code) and
the Mixed-Use Commercial zOning district (Article 40 of the Springfield Development Code).
zOning designations applied to the Applicant's property on November 7. 2005 The property IS
Identified as tax lot 3900 on the lane County Assessor's Map# 10-03-25-34
WHEREAS. the Applicant submitted to the City a conceptual site plan and elevation
(Plan) on August 24. 2007. shOWing a proposed retail development on the subject property
that could not be accommodated under certain regulations found In Articles 40 and 41 of the
Springfield Development Code The Plan IS hereto attached to thiS Agreement
WHEREAS, by Resolution No 05-13. the City Council found that the McKay
Investment Company demand for real property compensation to be a vahd claim and
authorized the City Manager to modify. remove. or not apply the elements of Article 40 and
Article 410f the Springfield Development Code that are the basIs for the demand claim, rather
than paYing compensation to the property owner. McKay Investments Company
WHEREAS. the effective date of Resolution No 05-13 was made subject to the signing
of a development agreement negotiated by the City Manager or his designate. speCifically
defining those development standards from Article 40 and Article 41 that Will be retained or
modified. and those not to be enforced on the subject site
WHEREAS. apart from the authority granted pursuant to ORS 94 504 et seq, the City
of Springfield has the power and authority pursuant to sections 4. 5. and 6 of ItS Charter to
1
Planmng Journal No LRP2006-00033 Development Agreement
-!fIn It)';>
WIN JaUUe/d
, P8^,a:>acl alea
enter Into a development agreement and chooses to enter Into this Agreement pursuant to that
Charter authority
WHEREAS. In conSideration for resolution of the Applicant's Demand for Real Property
Compensation. the City agrees to modify or not apply the following development standards
from Articles 40 and 41 of the Springfield Development Code as they apply to the Plan
attached hereto, In accord with the provIsions of Resolution No 05-13
A The follOWing standards found In Article 40 (Mixed-Use ZOning Districts) of the Springfield
Development Code shall be modified or not applied
40 070 Off-Street Parl..mg
(I)(a)2 The In"",mum parkmg prOVIded cannot e"ceed 120% of the mmllnum parkmg reqUirement for
commercIal development The proposed retail use may e,cced the ma",mum parkmg standard and
should not be applied
40 100 General Development Standards
(I )(a) Ground level wmdows covermg 50% of the length of a buildmg faclllg a street The Plan shows
entrance area glass wmdows and false panes portions of the bUlldmg fa,ade These may not meet the
50% standard
(5)(b) Street connectivIty and mternal CIrculation The proposed development may not allow a through
street connection from east to west between Mohawk Blvd and 18'h Street
(5)(e) Pedestnan connectIons to other buildlllgs may need to be waIved ConnectIons to Mohawk and
Centenl1lal should be retamed
(7) Pedestnan amemtles of the scale envIsioned by the Code may not fit mto the proposed plan
40 110 SpeCific Development Standards
(I )(b) Ma"lmum bUlldmg footpnnt of the proposed retail use m the Plan substantially exceeds the
standard ThIS standard WIll not be apphed
(I )(c) Mmlmum floor area rallo (also found m 41 040) The proposed development may necessitate a
large parkmg field that would reduce the development denSIty to less than the reqUired mmlmum rallos
(2)(d) Contmuous mternal SIdewalk network Imkmg WIth other development and to adjacent streets and
transIt stops Some of the buildmgs on the development site are not owned by the applicant and
connectIOn to these bUlldmgs by Sidewalk may not be poSSible S,dewalk connectIons to Centenmal and
Mohawk Boulevards WIll be reqUired
Plannmg Journal No LRP2006-00033 Development Agreement
2
Date Received S'/o / v7
Planner. MM
B The followmg standards found m Article 41 (Nodal Development Overlay District) of the
Springfield Development Code shall be modified or not applied
41 040 MInimum DensIty and Floor Area Rallo
(1)(b) SIte docs not meet 0 4 FAR standards ofSDC 41 040
(2)(a) BUlldmgs are to be set back no more than 20 feet from the street
(3)(a) The parkmg dnvmg and maneuvenng areas are to be placed at the rear or side of the bUlldmg
when It dbuts a street (m tillS case, Centenmal and Mohawk are the pnmary streets)
C The City Manager or hiS deSignate shall modify or not apply additional development
standards found m Article 40 and Article 41 of the Springfield Development Code that are
found to be m conflict With the Applicant's ability to site the retail development shown m the
Conceptual Plan when dOing so IS consistent With the mtent of Resolution No 05-13
D ThiS agreement does not modIfy or not apply development standards established mother
articles of the Springfield Development Code at the time the Nodal Development Overlay
(Article 41) deSignation and Mixed-Use Commercial (Article 40) zOning deSignations were
applied to the Applicant's property on November 7. 2005
E ThiS Agreement shall be bmdlng on and mure to the benefit of the parties and their
respective heirs, personal representatives. successors and permitted assigns
F Execution of thiS Agreement by the City and the Applicant shall make Resolution 15-03
effective
IN WITNESS WHEREOF. the Applicant and City have executed thiS Agreement as of the date
first herem above written
APPLICANT
BY
Date
BY
STATE OF OREGON. County of
,2007 Personally appeared the above named . who
acknowledged the foregOing mstrument to be their voluntary act Before me
Planmng Journal No LRP2006-00033 Development Agreement
3
Date Received *1 P7
Planner MM '
Notary Public for Oregon
My Commission expires
CITY
BY
Date
STATE OF OREGON, County of
. 2007 Personally appeared the above named . who
acknowledged the foregoing Instrument to be their voluntary act Before me
Notary Public for Oregon
My Commission expires
Planmng Journal No LRP2006-00033 Development Agreement
Date ReceIved
Planner MM
4
5 Ink,
(
Mmlmum Relief from the MIXed Use Development Ordmance (ArtIcle 40)
To allow Mohawk Center Development
40.020 Schedule of Use CategorIes
The MUC ZOnIng does not lIst Home Center per se Pamt, electncal supplIes, hardware,
floor covenngs, household appliances, and general merchandIse are allowed m MUC
Lumber sales and plumbmg and heatmg supplies are not lIsted m MUC but are allowed m
MUE
40 070 Off-Street ParkIng
The maxImum number of off-street spaces allowed WIthout an ITE parkmg generatIOn
study IS 120% of the mlmmum reqUIred for a commerCIal use as shown m 18 070
40 100 General Development Standards
(I)(a) Ground level wmdows covenng 50% of the length ofa bUlldmg facmg a street
(I)(c), (I) (d) offsets to break up expansIve lJlank walls and elevatIOns
(5)(b) Street connectIVIty and mternal cIrculatIOn The proposed development may not
allow a through street connectIOn from east to west between Mohawk Blvd and 18th
Street
(5)(e) Pedestnan connectIOns to other bUlldmgs may need to be waIved ConnectIOns to
Mohawk and CentennIal should be retamed
(7) Pedestnan amenItIes of the scale enVISIOned by the Code may not fit mto the proposed
plan
40 110 SpecIfic Development Standards
(I )(b) MaXImum bUlldmg footpnnt
(I)(c) MInImum floor area ratIo (also found m 41040) ThIS standard was based on the
eXlstmg denSIty on the Mohawk Center sIte The proposed development may necessItate
a large parkmg field that would reduce the development denSIty from the eXlstmg uses
(2)(d) Contmuous mternal sIdewalk network IInkmg WIth other development and to
adjacent streets and transIt stops
Date ReceIved _ 5;' 7 /67
Planner MM "
Mmlmum RelIeffrom the MIXed Use Developmeut Ordmance (ArtIcle 40)
To allow Mohawk Center Development
-'
40020 Schedule of Use Categones
The MUC zomng does not lIst Home Center per se PaInt, electncal supplIes, hardware,
floor covenngs, household applIances, and general merchandIse are allowed m MUC
Lumber sales and plumbmg and heatIng supplIes are not lIsted m MUC but are allowed In
MUE
40.070 Off-Street Parking
The maxImum number of off-street spaces allowed WIthout an ITE parkIng generatIOn
study IS 120% of the mInImum reqUIred for a commercIal use as shown In 18070
40.100 General Development Standards
(I )(a) Ground level WIndows covenng 50% of the length of a bUIldIng faclllg a street
(I)(c), (I) (d) offsets to break up expansIve blank walls and elevatIOns
(5)(b) Street connectIVIty and Illternal CIrculatIon The proposed development may not
allow a through street connectIOn from east to west between Mohawk Blvd and 18th
Street
(5)(e) Pedestnan connectIons to other bUIldIngs may need to be waIved ConnectIOns to
Mohawk and Centenmal should be retaIned
(7) Pedestnan amemtIes of the scale enVISIOned by the Code may not fit Illto the proposed
plan
40 110 SpeCIfic Development Standards
(I )(b) MaXImum bUIldIng footpnnt
(I)(c) MInImum floor area ratIo (also found In 41040) ThIs standard was based on the
eXIstIng denSIty on the Mohawk Center sIte The proposed development may necessItate
a large parkIng field that would reduce the development denSIty from the eXIstIng uses
(2)(d) ContInuous Internal SIdewalk network lInkIng WIth other development and to
adjacent streets and transIt stops
Date Received 5/11/0(
Planner MM