Res 1908 - Final Determination GottsackerCOUNCIL BILL NO. 2746
RESOLUTION NO. 1908
A RESOLUTION MAKING A FINAL DETERMINATION THAT CLAIMANT IS NOT ENTITLED
TO RELIEF UNDER MEASURE 49, SECTION 9 AND VOIDING THE CITY COUNCIL'S
PREVIOUS DECISION UNDER MEASURE 37
WHEREAS, On March 14, 2007, the City Council granted a general waiver
in response to Delbert Gottsacker's ("Claimant") Ballot Measure 37 claim, and;
WHEREAS, On December 6, 2007, Ballot Measure 49 became effective
and eliminated development rights previously allowed under Measure 37, and;
WHEREAS, Measure 49 requires that the City make a determination of
Claimant's right to establish a limited number of single-family homes on his
property pursuant to Section 9 of Measure 49, and;
WHEREAS, On July 10, 2008, the City made a tentative determination
concluding that Claimant was not entitled to relief under Section 9 of Measure
49, and;
WHEREAS, On September 8, 2008, the City Council held a public hearing
to address Claimant's rights under Measure 49, and;
WHEREAS, Claimant, during the public hearing, conceded that he was not
entitled to relief under Section 9 of Measure 49 and was not seeking such relief,
and;
WHEREAS, the Council considered all documents provided to the City
regarding the subject property including documents related to Claimant's prior
Measure 37 claims and all testimony by staff and the Claimant at the public
hearing, and; NOW, THEREFORE,
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1. The City Council hereby determines that Claimant is not
entitled to relief under Section 9 of Measure 49 and, therefore, voids its March
14, 2007 decision approving Claimant's Measure 37 claim (Claim No. M37 2006-
01).
Page 1 - COUNCIL BILL NO. 2746
RESOLUTION NO. 1908
Section 2. This decision is based upon evidence in the record before the
Woodburn City Council and is justified by the findings and conclusions which are
attached as Exhibit "A" and by this reference are incorporated herein.
Approved as to form:
City Attorney
Approved:
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
athryn f igl(py, M
r
�Septembe'?^-�, 2008
September 24, 2008
September 24, 2008
Filed in the Office of the Recorder September 24, 2008
ATTEST: 9a,4,L
Mary Te ant City Recorder
City of Woodburn, Oregon
Page 2 - COUNCIL BILL NO. 2746
RESOLUTION NO. 1908
EXHIBIT A
Findings and Conclusions
CITY OF WOODBURN, OREGON
CITY COUNCIL
General Information
Claimant: Delbert Gottsacker
8518 Parr Road NE
Gervais, OR 97026
Subject Property: The property is located at 500-510 and 514 North Pacific Highway and can
be identified on Marion County Tax Assessor's maps as tax lot 051 W 17BC00200.
Condition of the Property: The subject property is zoned Commercial General (CG)
and is designated Commercial on the Comprehensive Plan
Map. The site is 0.41 acre and is currently developed with
two commercial structures. Surrounding properties are
zoned Commercial General (CG) and are designated
Commercial on the Comprehensive Plan Map. No
significant trees exist on the site. No wetlands (per the
Woodburn Local Wetland Inventory map) or floodplains
(per the Federal Emergency Management Agency's Flood
Insurance Rate Map, panel 0139G, dated January 19, 2000)
exist on the site.
I. Evaluation of Claim under Measure 49 Section 9: Single -Family Homes
Ballot Measure 49, Section 10, requires that the City make a determination of Claimant's right to
establish a limited number of single-family homes on his property. This determination is
required regardless of whether the Claimant is requesting the establishment of single-family
homes or not. In the present case, Claimant has neither requested nor suggested the
establishment of single-family homes on the subject property.
On July 10, 2008, the Community Development Director, on behalf of the City, made a
"Tentative Determination" of Claimant's right to establish single-family homes on the property.
(copy attached). The tentative decision stated that Claimant was not entitled to relief under
Measure 49 for the establishment of single-family homes.
Under Section 9(5) of Measure 49 the following criteria must be met to qualify for relief:
(a) The claimant is an owner of the property.
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Claimant's Measure 37 files contain a copy of a warranty deed dated June 7, 1965
transferring the subject property to Claimant as sole owner. Claimant states that he
purchased the property on contract on September 10, 1960. Marion County tax records
indicate that Claimant is the current owner of the property.
This criterion is met.
(b) All owners of the property have consented in writing to the claim.
Claimant signed the original Measure 37 claim forms.
This criterion is met.
(c) The property is located, in whole or in part, within an urban growth boundary.
The subject property is located wholly within the City of Woodburn and the City's urban
growth boundary.
This criterion is met.
(d) On the claimant's acquisition date, the claimant lawfully was permitted to establish at
least the number of dwellings on the property that are authorized under this section.
Claimant acquired the subject property on September 10, 1960. At that time, the subject
property was located in unincorporated Marion County and was apparently not subject to
any zoning restrictions. Therefore, claimant was permitted to establish dwellings on the
property.
This criterion is met.
(e) The property is zoned for residential use.
The zoning map of the City of Woodburn shows the subject property to be zoned
Commercial General (CG). The subject property has been designated "Commercial" on the
Comprehensive Plan map since at least 1980.
This criterion is not met.
(f) One or more land use regulations prohibit establishing the single-family dwellings.
Single-family dwellings are not authorized as a principal use in the CG zone.
This criterion is met.
(g) The establishment of the single-family dwellings is not prohibited by a land use
regulation exempted in ORS 197.352 (3).
ORS 195.305(3) provides that regulations preventing (a) nuisances, (b) protecting the public
health and safety, (c) required for compliance with federal law, or (d) restricts uses related to
pornography and nude dancing are exempt from Measure 49.
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Establishment of single-family dwellings would not be implicated by any of the exemptions
of ORS 195.305(3).
This criterion is met.
(h) The land use regulation described in paragraph (f) of this subsection was enacted after
the date the property, or any portion of the property, was brought into the urban
growth boundary.
The subject property was brought into the urban growth boundary after 1973. The property
was shown on the Comprehensive Plan Map since at least 1980. Although not applicable to
the subject property until annexation, the present commercial zoning regulations were
enacted July 1, 2002. Therefore, the regulations were enacted after the property was located
within the urban growth boundary.
This criterion is met.
(i) If the property is located within the boundaries of Metro, the land use regulation that
is the basis for the claim was enacted after the date the property was included within
the boundaries of Metro.
This criterion is not applicable.
(j) If the property is located within a city, the land use regulation that is the basis for the
claim was enacted after the date the property was annexed to the city.
The subject property was annexed to the City on June 12, 2001 pursuant to Ordinance No.
2289. At the time of annexation, the property became subject to the Woodburn Zoning
Ordinance. The Woodburn Development Ordinance was adopted on April 9, 2002 and
became effective on July 1, 2002, replacing the Woodburn Zoning Ordinance as the
applicable land use regulation. Both of Claimant's Measure 37 claims and the Measure 49
claim refer to the Woodburn Development Ordinance.
This criterion is met.
(k) The challenged regulations reduced the fair market value of the property according to
an appraisal conducted as specified by Measure 49.
Section 9(7) of Measure 49 provides in part that "a claimant must provide an appraisal
showing the fair market value of the property one year before the enactment of the land use
regulation that was the basis for the claim and the fair market value of the property one year
after the enactment." (emphasis added)
As part of his second Measure 37 claim, Claimant submitted an appraisal which gave a
"Hypothetical Market Value — Without Constraints" of $315,000 and an "`As -Is' Market
Value — With Constraints" of $110,000 as of May 2, 2006. No appraisal was submitted for
the Measure 49 review.
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The appraisal submitted determined the fair market value of the subject property as of May
2, 2006 — not one year before the enactment of the land use regulation and one year after the
enactment as required by Measure 49.
This criterion is not met.
Section 9(8) Highest and best use. Relief may not be granted if the highest and best use of
the property was not residential at the time the land use regulations were enacted.
As part of his first Measure 37 claim, Claimant submitted a list of uses that had been
established at 514 North Pacific Highway from 1945-2004 and at 500-510 North Pacific
Highway "since being built." None of the uses listed were residential. Claimant's
submittals for the Measure 37 claims and the Measure 49 review did not mention residential
use of the property.
Claimant's appraisal submitted for the second Measure 37 claim concluded that "[b]ased
upon past, present and prospective market activity in the Woodburn area, it is our opinion
that a commercial use commensurate with the City's CG zoning ordinance is an adequate
expression of the highest and best use of the vacant site." (emphasis in original).
The subject property's location also suggests residential is not the best use. The subject
property abuts a state highway and has been used consistently for commercial purposes
since Claimant purchased it. Therefore, the highest and best use is commercial and not
residential.
This criterion is not met.
Conclusion: Measure 49 Section 9 single-family homes
To be eligible for relief under Measure 49, approved Measure 37 claimants must meet all of the
requirements of Section 9. While the claim meets the requirements of Section 9(5)(a -d and f -j),
it did not meet the requirements of Section 9(5)(e and k) and Section 9(8).
Therefore, Claimant is not entitled to relief under Section 9 of Measure 49.
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