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HomeMy WebLinkAboutCorrespondence APPLICANT 7/1/2008 "?..!;.: .l '. ....) I '^"" \")c::,~a~ Ii, 2-. B .L\... ~ '-l~ v~ --- \ Electronic Correspondence s. ~\.)\~~ July 1, 2008 James L. Williams - jwilliam@uoregon,edu The Duck Store P.O, Box 3176 Eugene, OR 97403 Re: Springfield Annexation Requirements Dear Mr. Williams: On behalf of The Duck Store, you have asked me to review the City of Springfield's requirements of The Duck Store in order to obtain City review and approval of an expansion of its storage facility in the Glenwood area. A. The Duck Store's proposal and the City's requirements. The Duck Store proposes to expand the footprint of its storage facility by approximately 59 percent. This will include primarily additional storage area with some addition of office space. It is my understanding that while there will be an increase of three employees this summer at the present facility, there will be no further increase in the number of employees when the expanded facility is occupied, The portion of the site that is paved will be increased. This pavement, while providing some additional passenger'car parking, is primarily intended to allow greater paved area for maneuvering of the trucks that serve the site. It is not. anticipated, however, that the number of trucks serving the site will increase. The primary objective of the expansion is to increase the functionality of the facility rather than increase the intensity of use. The Springfield Development Code allows the expansion of industrial uses in the applicable district, the Urbanizable Fringe Overlay District, if it is demonstrated that the use will not generate additional need for key urban services. The proposed Duck Store expansion will not require any extension of any key urban services to the site, Water needs, onsite septic service, disposition of stormwater all are demonstratively capable of being addressed on the site. , Police services are now and will be following the expansion provided by the Lane County Sheriff's office. Fire service will be provided, as it is now, by the Draft 975 Oak Stn:cl, Suite 800 Eugene, Oregon 9740 I Mailing Address: P.O. Box 1147 Eugene, Oregon 97440-1147 Phone: (;41) 686-8833 Fax: (;41) 345-2034 J .f>.... " '. James L. Williams July 1, 2008 Page 2 " \ Springfield Fire Department, as is the case with many areas outside the City boundaries. The City has taken the position that The Duck Store expansion will result in an additional need for key urban services and, in order to review The Duck Store's proposal for expansion, the City is requiring the signing of an "Agreement Regarding Annexation," committing The Duck Store to a large specified financial obligation, plus an open-ended commitment to provide various public improvements. The Agreement, as discussed below, specifically calls for The Duck Store to' waive its constitutional protection against unlawful exactions afforded by the Supreme Court's decision in polan v. City of Tiaard. B. Springfield's authority under the Intergovernmental Agreement of 1986 between Lane County and City of Springfield (IGA), The referenced IGA transferred building and planning responsibilities for the urbanizable area between the Springfield City limits and the Urban Growth Boundary from Lane County to the City of Springfield, A copy of the IGA is attached. The IGA at Article IV.A.2 provides that the land use regulations for this area shall include an overlay district which requires: "... 'consent to annexation' and 'waiver of remonstrance' agreements for all Type II - IV development permits...." This provision is consistent with the IGA between Lane County and City of Eugene for Eugene's urbanizable area. Neither agreement provides that when a land use action takes place, a property owner can be required to not only petition for annexation but to sign an agreement relinquishing a property owner's rights and committing a property owner to very substantial and open-ended financial obligations. I do not believe that such a requirement is authorized by the IGA and question whether it was the Lane County Board of Commissioners' . intent in approving the Urbanizable Fringe Overlay District to put such power in the hands of the City of Springfield. c. , The City's proposed "Agreement Regarding Annexation," The City's proposed Agreement should be considered relative to the authority granted to the City by the IGA, as discussed above, The City would require a contractual commitment on the part of The Duck Store in a number of regards: "1.2 Additional Urban Services. Applicant will provide and be . financially responsible for the provision of any additional urban facilities and services identified during the review and approval of Draft '" , ...... .. , James L. Williams July 1, 2008 Page 3 , the Public Improvement Plans as necessary to serve the development of the Property, including the construction and maintenance thereof until acceptance by City," The Duck Store would be contractually agreeing to be financially responsible for the provision of any additional urban facilities or services identified by the City during the review and approval of the Public Improvement Plans. This would leave the determination of what would be necessary to serve the use in the total discretion of the City without right to challenge or for review as to what portion of the cost of these improvements should be The Duck Store's burden, "1.3 Off Site Iml'lrovements. Applicant will provide and be financially responsible for the costs of any off-site improvements required to demonstrate compliance with conditions required by the Springfield Development Services Director, Planning Commission, or the Springfield City CounciL.." Again, this contractually commits the property owner to pay for any off-site improvements deemed necessary by the City, This is without regard to what portion of those improvements are specifically attributable to The Duck Store's development relative to the portion that would serve other developments as well. This relates to the City's requirement, discussed below, that Dolan rights be waived. "1.4 Annexation Contribution, Applicant will provide reasonable financial contributions (the 'Annexation Contribution') to assist in funding general off"site public improvements within the Glenwood Area...." As you know, the contribution'would amount to approximately $220,000. With the waiver of Dolan rights required by this contract, the property owner would be made liable for this expense even though it was not proportionate to the impact of development on public services, as Dolan requires. "1.9 Stormwater. Applicant will provide and be financially responsible for provision of stormwater systems to serve the Property and tributary areas by developing on-site and off-site public stormwater management systems to provide drainage service to the Property ...." This paragraph sets forth an open-ended obligation to provide a stormwater system to not only the property but tributary areas to an improved outfall into the Willamette River. The obligation to grant the City an easement it deems necessary is also required. DJf,1ilft ,,/ James L. Williams July 1, 2008 ' Page 4 "1.10 Frontaoe Transoortation Imorovements. Public TransDortation Imorovements. Lioht Mediu'm Industrial." This section not only requires construction of the frontage improvements for the property but construction of a travel lane plus curb, gutter, bike lane and sidewalk, street trees, street lights, and other standard amenities, and, if the City deems necessary, additional right-of-way at no cost. Such requirements are subject to Dolan examination to determine whether the burden placed upon the property owner is proportionate to the impact of the use of the property on the public facility, Under the contract, there would be no proportionate distribution of obligations between public and private. "9, Pavment in Lieu of Taxes." There ,is no reason a nonprofit corporation should give up its option to not pay property taxes or taxes in lieu of property taxes simply because it is not yet part of the City. "12. Dolan v. City of Tioard." This section would require The Duck Store to release its rights under the Dolan v, City of Tiaard Supreme Court case. Dolan v, City of Tioard, 512 US 374, 375, 391, 114 S Ct 2309, 2319, 2320, 2322, 129 LEd 2d 304 (1994) and a line of Oregon cases which followed requires that a local government show rough proportionality, both in nature and extent, between an exaction requirement (payment of money or the taking of land) and the impact of the proposed development. Basically, a private landowner cannot be required to bear a greater burden than that which would be proportional to the problem caused by the applicant's development. This agreement would call upon The Duck Store to give up its right to challenge any requirement that it pay for public infrastructure exceeding the amount that would be proportional to the impact of The ,Duck Store's development. Not only have I never encountered such a provision in an agreement, in the extensive materials I have reviewed in the course of my practice since the Dolan decision, I have never seen suggested that one could be called upon to give up this constitutional right.' While the amount of $~20,000 the City seeks to require is striking, no less of concern should be this provision exposing The Duck Store to unknown and unlimited requirements for improvements the City deems necessary. Draft . ,I 1..,'" . ,! James L. Williams July 1, 2008 Page 5 D, Conclusion. The IGA states that the agreement is entered into by the parties "to provide for the transition of responsibility for certain services from the County to the City," Code provisions for this urbanizable area are subject to joint City and County approval and cannot be imposed unilaterally by one party to this agreement. The property owners ofthis urbanizable area are County residents and governed by the County, save for agreed delegation of planning and zoning approval by the City of Springfield pursuant to the ordinances that have been jointly adopted by the City and the County. As indicated above, the jointly adopted Urbanizable Fringe Overlay District does provide that consent to annexation waiver remonstrance agreements must be provided for all Type II through IV development permits. Neither that zoning district nor any other jointly adopted ordinance empowers the City to require not , only annexation but an agreement to annex in order to process Type II through IV permits, The CitY is proposing the annexation agreement requirement in order to exact financial commitments and fees for which there is no ordinance authority. Particularly, the "$220,000 annexation contribution" is a fee that has no basis in the Springfield Code, including no adopted methodology for establishment of the fee, It is my opinion that the City of Springfield's requirements extend beyond the authority granted in the IGA and the jointly adopted land use regulation, the Urbanizable Fringe Overlay District. If necessary, this should be brought to the attention of the Lane County Board of Commissioners. I am available to discuss this further. Very truly yours, James W Spickerman spickerman@gleaveslaw.com jca Attachment: cc: Intergovernmental Agreement Rhonda Stoltz - rstoltz@uoregon,edu Draft