Agenda - 11/29/2004 Spec Mtg
l
WOODBURN CITY COUNCIL
SPECIAL MEETING AGENDA
NOVEMBER 29, 2004 - 7:00 P.M.
1. CALL TO ORDER AND FLAG SALUTE
2. ROLL CALL
3. GENERAL BUSINESS - Members of the public wishing to comment on items of
general business must complete and submit a speaker's card to the City
Recorder prior to commencing this portion of the Council's agenda.
Comment time may be limited by Mayoral prerogative.
A. Council Bill No. 2544 - Ordinance regarding Ballot Measure 37 1
Recommended Action: Adopt the ordinance.
B. land Purchase Agreement for Expansion of Wastewater 2
Treatment Facility
Recommended Action: Authorize the City Administrator to
execute an agreement for the purchase of approximately 92.5
acres for expansion of the Woodburn treatment facility.
C. Certified Election Results - November 2, 2004 General Election 13
Recommended Action: Receive the report.
4. PLANNING COMMISSION OR ADMINISTRATIVE lAND USE ACTIONS - These
are Planning Commission or Administrative Land Use actions that
may be called up by the City Council.
A. Community Development Director's Approval of Partition 04-07 18
(Boones Crossing)
5. ADJOURNMENT
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ComunTquese ,II (503) 980-2485".
November 29, 2004
City Council Special Meeting Agenda
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ITEM 3A, ORDINANCE REGARDING
BALLOT MEASURE 37, WILL BE DELIVERED
TO THE COUNCIL ON MONDAY,
NOVEMBER 29, 2004
1
COUNCIL BILL NO.
ORDINANCE NO.
AN ORDINANCE REGARDING MEASURE 37 CLAIMS; ESTABLISHING A PROCESS FOR
THE CITY TO EVALUATE SAID CLAIMS SO THAT THE CITY CAN DECIDE SAID CLAIMS
ON A RATIONAL BASIS; AND DECLARING AN EMERGENCY.
WHEREAS, on November 2, 2004, the Oregon voters passed Measure 37,
amending ORS Chapter 197; and
WHEREAS, it is necessary that the City pass this Measure 37 claims
processing ordinance as explained more fully herein; and
WHEREAS, it is appropriate that an emergency be declared so that this
Ordinance can be in place prior to the Measure 37 effective date of December
2,2004, NOW, THEREFORE,
THE CITY OF WOODBURN ORDAINS AS FOLLOWS:
Section 1. Findinas. The City makes the following findings:
A. On November 2, 2004, the voters of the state of Oregon approved
Measure 37. The measure amends ORS Chapter 197 to require, under certain
circumstances, payment of compensation to owners of real property if
government land use regulations reduce fair market property value; and
B. Measure 37 provides that to receive compensation, an owner of
real property must make a "written claim for compensation" to the government
entity enacting a new land use regulation or enforcing an existing a land use
regulation that allegedly restricts the use of their property and has the effect of
reducing its fair market value; and
C. Measure 37 authorizes the City to adopt necessary claims
procedures; and
D. Measure 37 requires payment of just compensation for any
reduction in fair market value of real property, or in the alternative allows cities
to modify, remove or not apply the land use regulation allegedly reducing a
property's fair market value; and
E. The City has a duty to safeguard public funds and not pay public
funds to private parties without a legal justification and a rational basis; and
Page 1 - Council Bill No.
Ordinance No.
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F. Measure 37 imposes a new duty on the City to review claims for
compensation and make decisions on those claims. A determination to waive
or modify a land use regulation, or compensate a property owner must be
based on substantial factual information and analysis. Necessary information
must be provided by a real property owner when making a written claim for
compensation; and
G. Measure 37 states that if a public entity enacts or enforces a new
land use regulation or enforces a land use regulation enacted prior to the
effective date of the measure that restricts the use of private real property or
any interest therein and has the effect of reducing the fair market value of the
property, or any interest therein, then the owner of the property shall be paid just
compensation; and
H. Except for certain new land use regulations, the City finds it is
necessary and required that the City make a Measure 37 determination as to
whether a land use regulation should be enforced prior to a claim accruing
under Measure 37; and
I. The City finds that it is necessary for Measure 37 claimants to
provide factual and analytical information regarding their claims so that the City
can evaluate the claims and have a rational basis to decide the claims.
Section 2. Accrual of Claims. Except in cases where the enactment of a
new land use regulation by the City is shown by Claimant to restrict the use of
private real property and have the effect of reducing the fair market value of
the property, no enforcement of a land use regulation under Measure 37 shall
be deemed to have occurred and no claim under Measure 37 shall have
accrued until the City is provided necessary information under this Ordinance to
evaluate and decide the Measure 37 claim presented by Claimant on a
rational basis.
Section 3. Definitions. As used in this Ordinance, the following words
and phrases mean:
City Administrator. The City Administrator of the City of Woodburn, or the
City Administrator's designee.
Claim. A claim filed under Measure 37.
Claimant. The owner of property making a claim under Measure 37 and
this Ordinance, or their designee, so long as written authorization is provided to
the City by the property owner for the designee to represent the owner in
making the claim.
Page 2 - Council Bill No.
Ordinance No.
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Exempt Land Use Regulation. A land use regulation that:
1 . Restricts or prohibits activities commonly and historically
recognized as public nuisances under common law;
2. 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, pollution control regulations,
wetlands and floodplain regulations, grading and fill regulations, landslide
hazard regulations, and street regulations, wireless communication facility siting
regulations, tree preservation regulations, sign regulations, setback and fencing
regulations and natural resource regulations to the extent they are determined
necessary for public health and safety;
3. Is required in order to comply with federal law;
4. Restricts or prohibits the use of property for the purpose of
selling pornography or performing nude dancing;
5. Was enacted prior to the date of acquisition of the property
by the owner or a family member of the owner who owned the subject property
prior to acquisition or inheritance by the owner, whichever occurred first; or
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.
Land Use Regulation. Includes:
1. Any statute regulating the use of land or any interest therein;
2. Administrative rules and goals of the Land Conservation and
Development Commission;
3. Local government comprehensive plans, zoning ordinances,
land division ordinances, and transportation ordinances; and
4. Statutes and administrative rules regulating farming and forest
practices as applicable to lands in the City.
Page 3 - Council Bill No.
Ordinance No.
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A land use regulation does not include any City system development
charge or any other City development fee or charge.
Owner. The present Owner of the property, or any interest therein.
Section 4. Claim Filino Procedures.
A. A person seeking to file a claim under this Ordinance must be the
present owner of the property that is the subject of the claim at the time the
claim is submitted. The claim shall be filed with the City Administrator's office, or
another department of the City if so designated by the City Administrator.
B. A claim shall include a completed claim form, which will be
provided by the City, together with the following additional information:
1. The name(s), address(es) and telephone number(s) of all
owners, and anyone with any interest in the property, including lien holders,
trustees, renters, lessees or easement holders, and a description of the ownership
interest of each;
2. The address, tax lot, and legal description of the real property
that is the subject of the claim, together with a title report issued by a title
company no more than 30 days prior to the submission of the claim that reflects
the ownership interest in the property, or other documentation reflecting sole
ownership of the property by Claimant, and the date the property was acquired
by the present Owner. Where it is necessary for the City to evaluate the claim,
all "chain of title" information shall be included;
3. The land use regulation that Claimant alleges restricts the use
of the real property and allegedly causes a reduction in the fair market value of
the property;
4. Claimant shall specify the remedy sought. Claimant may
specify alternative remedies. If Claimant is seeking "just compensation," the
amount of the claim, based on the alleged reduction in value of the real
property shall be supported by an appraisal by an appraiser licensed by the
state of Oregon establishing the reduction in the fair market valuE~ of the
property as of the date of the claim;
5. Copies of any leases or Covenants, Conditions and
Restrictions (CCR's) applicable to the property, if any, that impose restrictions on
the use of the property, or which would affect its valuation;
Page 4 - Council Bill No.
Ordinance No.
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6. Identification of the particular use that is proposed for the
property and proof that the requested use was allowed as proposed at the time
the owner or family member acquired the property;
7. Where the claim is based on family descent, proof that the
former owner(s) was a family member of the present owner.
8. Evidence the City has enforced a current land use regulations
against Claimant's real property in such a way as to restrict the use of that real
property with the effect of reducing the fair market value of that real property.
In the determination of fair market value, market conditions shall be taken into
account, and shall be valued as of the date of acquisition by the present owner
thereof;
9. A list of names of property owners, certified by either a title
company or the Marion County Assessor, or all current owners of record of all
properties that lie within 500 feet of the perimeter boundary of the real property
subject to the claim;
10. Signatures of all owners or those claiming ownership in the
property over which the claim is being made; and
13. A deposit for costs in the amount of $500, and which will be
administered, billed and collected as provided for in this Ordinance.
Section 5. Voluntary Claim Conference. Before submitting a claim, or at
any time after a claim is submitted, Claimant may request a claim conference
with the City Administrator or designee. The City Administrator or designee is not
authorized to settle any claim at a Claim Conference, but may use the
conference to fully discuss the claim with Claimant and may include information
on this discussion in the City Administrator's report to the City Council.
Section 6. Burden of Proof. Claimant has the burden of presenting
sufficient evidence under this Ordinance so that the City can rationally apply
Measure 37 to the claim.
Section 7. Claim Review Process.
A. The City Administrator shall assess any claim and make a
recommendation to the City Council on the disposition of the claim.
B. The City Administrator shall mail notice of the claim to Claimant and
to all owners of record of the property, and to all owners of property within five
Page 5 - Council Bill No.
Ordinance No.
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hundred (500) 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. The City Administrator's notice shall:
1 . State the basis of the claim, the amount of the compensation
sought and the regulation that causes the compensation to be alleged to be
due.
2. Identify the property by the street address or other easily
understood geographical reference;
3. State that persons notified may provide written comments on
the claim, and provide the date written comments are due or, if a hearing has
been scheduled, the date, time and location of the hearing. Include a general
explanation of the requirements for submission of written comments or, if a
hearing is to be held, the requirements for submission of testimony and evidence
and the procedure for conduct of hearings;
4. Identify the City representative and telephone number to
contact to obtain additional information; and
5. State that a copy of the claim and the supporting documents
is available for inspection at no cost, and that copies will be provided at
reasonable cost.
D. Written comments regarding a claim may be submitted to the City
Administrator or designee.
E. The City Administrator shall schedule a public hearing, in the City
Administrator's discretion, after having an opportunity to review the Claim.
F. If a hearing is conducted:
1. Claimant and all interested parties may present and submit
documents and evidence.
2.
the hearing.
Any staff report used at the hearing shall be available prior to
3. The City, at its discretion, may reopen a record to admit new
evidence or testimony.
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Ordinance No.
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4. The failure of a person entitled to notice to receive notice as
provided in this section shall not invalidate such proceedings. The notice
provisions of this section shall not restrict the giving of notice by other means.
G. The City Administrator shall make a recommendation on the claim
to the City Council applying the standards of Measure 37 and based on all of
the information received pursuant to this Ordinance.
H. The City Administrator may, in the City Administrator's discretion,
retain the services of an appraiser to appraise the property and evaluate the
claim to assist in determining the validity of the Claim.
I. In deciding a Claim, the City Council will consider the standards of
Measure 37 and the information presented by Claimant pursuant to this
Ordinance; the benefit(s) accruing to the public arising as a result of application
of the regulation; and the burden to the public in paying compensation to
Claimant, taking into consideration the available financial resources of the City.
The City Council may take, but is not limited to taking, anyone or more of the
following actions on a claim, as appropriate:
1. Deny the claim based on, but not limited to, anyone or more
of the following findings:
(a) The land use regulation does not restrict the use of the
private real property;
(b) The fair market value of the property is not reduced by
the enactment, enforcement or application of the land use regulation;
(c) The claim was not timely filed;
(d) Claimant failed to provide the necessary information
under this Ordinance;
(e) Claimant is not the property 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;
(f) The land use regulation is an exempt land use
regulation;
(g) The land use regulation in question is not an enactment
of the City;
Page 7 - Council Bill No.
Ordinance No.
(h) The City has not taken action to enact, enforce or
apply the land use regulation to the property;
(i) The owner is not entitled to compensation under
Measure 37, for a reason other than those provided herein.
2. Award compensation, either in the amount requested, or in
some other amount supported by the evidence in the record. Payment of any
compensation is subject to the availability and appropriation of funds for that
purpose.
3. Modify the regulation.
4. Remove the regulation.
5. Not apply the regulation.
6. Acquire the affected property through negotiation or
eminent domain.
7. Take such other actions as the City Council deems
appropriate consistent with Measure 37.
J. If the City Council removes or modifies the challenged land use
regulation, it may, at its discretion, put back into effect with respect to the
subject property, all of the land use regulations in effect at the time Claimant
acquired the property.
K. The City Council shall have the right to condition any grant of
waiver or modification of land use regulations for any purpose which protects
the health, safety and welfare of the public. Any condition so imposed must be
clear and concise and related directly to the claim and the use being proposed
therein. Failure to comply with any condition of approval is grounds for
revocation of the approval of the claim, grounds for recovering any
compensation paid and grounds for revocation of any other action taken under
Measure 37 and this Ordinance. All conditions, time limits or other restrictions
imposed with approval of a claim will bind all subsequent owners of the
property.
L. A decision by the City Council to remove or modify a land use
regulation shall result in the proposed use allowed by the waiver or modification
being thereafter considered a non-conforming use under Oregon Revised
Statutes, Oregon Administrative Rules, and the Woodburn Development
Page 8 - Council Bill No.
Ordinance No.
Ordinance. Upon grant of waiver or modification, Claimant shall cause notice
thereof by way of a "License" form provided by the City, to be recorded in the
deed records of the subject property so that all future owners thereof are put on
notice of the non-conforming use status of the development on the property.
M. Any waiver or modification of land use regulation granted pursuant
to this Ordinance under the authority of Measure 37 is personal and shall not be
transferred to any third party. Any transfer of the rights granted by the City shall
result in the automatic termination of the waiver or modification.
Section 8. Deposit and Final Bill.
A. Claimant shall be required to deposit with the City the sum of $500
as costs for the processing of the claim. The City shall maintain a record of its
claim processing costs, including the costs of obtaining information required
herein which Claimant does not provide to the City. At such time as the deposit
is exhausted, the City Administrator may require an additional deposit in an
amount deemed sufficient to complete City action on the claim.
B. If a claim is found to be valid by the City or a Circuit Court, then the
City shall refund the amount of the deposit to Claimant.
C. If a claim is finally determined to be invalid, then the City
Administrator shall send Claimant a final bill showing the total costs incurred by
the City in reviewing and acting on the claim, showing credit for the deposits
posted, and either refund or bill the balance as dictated by the deposit ledger.
D. If the property owner owes an amount to the City and does not pay
the amount due within 30 days after the final bill is sent, then the City shall
pursue collection, including filing a lien on the property. The City shall be
entitled to costs of collection, including attorney fees, costs and disbursements
incurred in collection.
Section 9. Appellate Riahts. Any decision under this Ordinance is not a
land use decision, and none of the formalities required of land use decisions by
statue, rule or local ordinance are necessary. Appeal of any final decision of
the City made hereunder shall not be to the Oregon Land Use Board of
Appeals, but to Marion County Circuit Court on Writ of Review pursuant to ORS
34.010 to 34.102.
Section 10. Record Keepina. The City shall keep a central record of all
Claims made hereunder and the disposition thereof. Specific notation shall be
made on the comprehensive plan and zone maps of the existence and extent
of any waiver or modification granted under this Ordinance.
Page 9 - Council Bill No.
Ordinance No.
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Section 11. Private Cause of Action. If the City's approval of a claim 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(s) of the other
property shall have a cause of action in Circuit Court to recover from Claimant
the amount of the reduction. This section shall not be construed to create a
cause of action against the City of Woodburn.
Section 12. Attorney Fees. If an owner commences an action to collect
compensation and the City prevails, the City is entitled to all fees and costs it
incurred, as well as any sum that a court, including an appellate court, deems
reasonable as attorney fees.
Section 13. Severability. If any phrase, clause, or other part or parts of this
Section 1.950 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.
Section 14. Emeraency Clause. This Ordinance being necessary for the
immediate preservation of the public peace, health, and safety, an emergency
is declared to exist and this Ordinance shall take effect immediately upon
passage by the Council and approval by the Mayor.
Approved as to form: C--h rf4r~
City Attorney
//)Zq!ZODL/-
Dat~ '
Approved:
Kathryn Figley, Mayor
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST:
Mary Tennant City Recorder
City of Woodburn, Oregon
Page 10- Council Bill No.
Ordinance No.
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November 29,2004
FROM:
Honorable Mayor and City Council
John C. Brown, City Administrator
N. Robert Shields, City Attorney ~ j
TO:
SUBJECT:
Measure 37 Ordinance
RECOMMENDATION:
It is recommended that the City Council adopt the attached ordinance for the
processing of Measure 37 claims.
BACKGROUND and DISCUSSION:
On November 22,2004, the City Council discussed a Measure 37 ordinance. I
have attempted to draft an ordinance consistent with that discussion. This is a
"placeholder" ordinance in the sense that it may be necessary for the City to
later revise this process based upon legislative action and/or the City's own
claims processing experience. What follows is a summary of the key ordinance
proVIsions:
Section 1. - Findings - This section formally explains why the city passed the
ordinance. It will be important if future litigation occurs. It explains that the City
has a duty to safeguard public funds and not payout public money without a
rational basis. The City also has the responsibility to follow the law and not waive
legal regulations without some basis. The ordinance is necessary under Measure
37 so that the City Council has the information necessary to evaluate a claim.
Section 2 - Accrual of Claims - This is an important section. Measure 37 appears
to require enactment of a new land use regulation or enforcement of land use
regulation for a claim to be triggered. This section states that no claim under
Measure 37 accrues until the City is provided the necessary information pursuant
to the Ordinance to make an enforcement decision and to evaluate the claim
on a rational basis.
Agenda Item Review:
City Attorney
.'. 'y"
Honorable Mayor and City Council
November 29,2004
Page 2
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Section 3. Definitions - Exempt Land Use Regulation - Subsection 2 quotes the
language from the measure giving examples of "activities for the protection of
public health and safety" and then lists related activities to the extent they are
determined necessary for public health and safety.
Section 4 - Claim Filing Procedures - In this section, I attempted to include the
claim information generally discussed with the Council. A title report and
appraisal are required to be included with the claim.
Section 5 - Claim Conference - This provides a procedure for a voluntary
conference to discuss the claim.
Section 6 - Burden of Proof - The person making the claim has the burden of
establishing the claim.
Section 7 - Claim Review Process - In this section, I attempted to include the
claim processing information generally discussed with the Council. The City
Administrator normally will schedule a public hearing but also has the authority
to present a claim to the City Council for summary action. If the City Council
decides to impose a "waiver", it has maximum flexibility as to the scope of the
waiver. Any waiver is personal to Claimant, is recorded, and can not be
transferred to third parties.
Section 8. - Deposit and Final Bill - Pursuant to Council discussion, a $500 deposit
will be charged to Claimant when a claim is made. For valid claims, this amount
is refunded. If a claim is finally determined to be invalid, the City sends a final bill
and pursues collection.
Section 9. - Appellate Rights A decision under the ordinance is not a land use
decision and is reviewed only by Writ of Review in Marion County Circuit Court.
Section 11. - Private Cause of Action Pursuant to Council discussion, a private
cause of action against the property owner is created by the ordinance for
damage to the property of third parties.
Section 12. Attorney Fees If the City prevails in Circuit Court after an owner
commences an action to collect compensation, it is entitled to attorney fees
FINANCIAL IMPACT:
Unknown at this time.
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November 24, 2004
Revised: November 29, 2004
FROM:
Mayor and City Council through City Administrator
G. S. Tiwari, Public Works Director ~~ ~ G' .-
Land Purchase Agreement for Expansion of Wastewater Treatment
Facility (Revised on November 29, to include negotiated terms
under the Discussion item)
TO:
SUBJECT:
RECOMMENDA liON:
Authorize the City Administrator to execute an agreement for the purchase of
approximately 92.5 acres for expansion of the Woodburn treatment facility. A
draft of the proposed agreement is attached.
BACKGROUND:
The City of Woodburn has constructed a wastewater facility that is
environmentally friendly and allows future expansion in phases according to
need. From the initial design stage, the Phase II expansion of the wastewater
facility has been scheduled to take place between years 2009 to 2011.
However, the planning and engineering design needs to start a few years earlier
and the purchase of suitable property must take place prior to start of
engineering design. This process generally takes about 4 to 7 years depending
on its complexity. The City of Woodburn is reaching this stage now.
In addition, the new draft of wastewater discharge limits, that will become part
of the City's permit. will require that the City control the thermal loading of the
wastewater discharge to the Pudding river. This requirement accelerates the
process and the City needs to start preliminary design engineering without
delay.
The initial plan to expand the tree plantation has been targeted at 60 to 80
acres every five years. The City is currently utilizing 84.4 acres of poplar trees. In
the year 2020 the city is expected to have approximately 323 acres of poplar
trees. However, staff feels that with minor changes in the application process
and with construction of some wetlands, the acreage need would be reduced
Agenda Item Review:
City Administrator _
City Attorney _
Finance
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Honorable Mayor and City Council
November 24, 2004 Revised: November 29, 2004
Page 2
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more than initially projected. This will require negotiations with the Department
of Environmental Quality that staff will be starting soon after evaluation and
during the preliminary engineering phase.
DISCUSSION:
The City is reaching the time frame that will require Phase II expansion for the
Woodburn Wastewater facility to be initiated. The new proposed thermal
loading requirements dictate the expansion needs to be accelerated. The
purchase of suitable property is the first step to start planning for expansion while
continuing to meet the permit requirements. The mechanical portion of the
plant, the pumping system and the poplar tree re-use system will all need to be
expanded accordingly to the plan. A most suitable property, in close proximity
to the treatment plant, has become available for purchase. City staff has
negotiated the purchase of the property within the guidelines of the City
Council. These council guided, and staff negotiated, terms are outlined below:
1. Purchase price of $935,000 (owner's initial price was $1,060,000).
2. City must not allow hunting on the property (this was the desire of
owner's late mother).
3. Closing to be completed, and payment made in full, by December 31,
2004.
4. Wood stoves removal to be allowed, however, the house heating
system which uses oil and wood is to remain intact.
5. An extension of time up to J 20 days to be given beyond closing date to
allow the current owners to temporarily store and dispose of the farm
equipment on site. City will not assume any responsibility for
equipment loss or related problems.
6. Closing to be done at Fidelity Title Insurance in Woodburn using cost
distribution as outlined below:
a) TItle Insurance to be paid by purchaser.
b) All other closing costs to be shared equally between seller and
purchaser.
The City Attorney has placed the negotiated terms into a legal agreement, a
draft of which is attached. The Council has approved all the major terms of the
agreement previously. There are a limited number of outstanding issues
associated with the property that require resolution. It is anticipated that these
can be addressed to the mutual satisfaction of the parties within the next week
to ten days. Authorizing the city Administrator to execute the agreement at the
.. .... y'
Honorable Mayor and City Council
November 24. 2004 Revised: November 29, 2004
Page 3
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current time will expedite the purchase of this property within the timeframe
required by the seller, December 31 , 2004.
FINANCIAL IMP ACT:
The cost of the land purchase is $935,000 plus closing costs. The funds for
purchase of land needed for expansion are included in the approved budget
under the line items for Sewer System Development Charges and the Sewer
Fund.
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November 24, 2004
TO:
FROM:
Mayor and City Council through City Administrator
Public Works Director ~ ~
Land Purchase Agreement for Expansion of Wastewater Treatment
Facility
SUBJECT:
RECOMMENDATION:
Authorize the City Administrator to execute an agreement for the purchase of
approximately 92.5 acres for expansion of the Woodburn treatment facility. A
draft of the proposed agreement is attached.
BACKGROUND:
The City of Woodburn has constructed a wastewater facility that is
environmentally friendly and allows future expansion in phases according to
need. From the initial design stage, the Phase II expansion of the wastewater
facility has been scheduled to take place between years 2009 to 2011.
However, the planning and engineering design needs to start a few years earlier
and the purchase of suitable property must take place prior to start of
engineering design. This process generally takes place about 4 to 7 years
depending on its complexity. The City of Woodburn is reaching this stage now.
In addition, the new draft of wastewater discharge limits, that will become part
of the City's permit will require that the City control the thermal loading of the
wastewater discharge to the Pudding River. This requirement accelerates the
process and the City needs to start preliminary design engineering without
delay.
The initial plan to expand the tree plantation has been targeted at 60 to 80
acres every five years. The City is currently utilizing 84.4 acres of poplar trees. In
the year 2020 the City is expected to have approximately 323 acres of poplar
trees. However, staff feels that with minor changes in the application process
and with construction of some wetlands, the acreage need would be reduced
more than initially projected. This will require negotiations with the Department
of Environmental Quality that staff will be starting soon after evaluation and
during the preliminary engineering phase.
{j
Finance
Agenda Item Review: City Administr
2
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Mayor and City Council
November 24, 2004
Page 2
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DISCUSSION:
The City is reaching the time frame that will require Phase II expansion for the
Woodburn Wastewater facility to be initiated. The new proposed thermal
loading requirements dictate that the expansion needs to be accelerated. The
purchase of suitable property is the first step to start planning for expansion while
continuing to meet the permit requirements. The mechanical portion of the
plant, the pumping system and the poplar tree re-use system will all need to be
expanded accordingly to the plan. A most suitable property, in close proximity
to the treatment plant, has become available for purchase. City staff has
negotiated the purchase of the property within the guidelines of the City
Council.
The City Attorney has placed the negotiated terms into a legal agreement, a
draft of which is attached. The Council has approved all the major terms of the
agreement previously. There are a limited number of outstanding issues
associated with the property that require resolution. It is anticipated that these
can be addressed to the mutual satisfaction of the parties within the next week
to ten days. Authorizing the City Administrator to execute the agreement at the
current time will expedite the purchase of this property within the timeframe
required by the seller, December 31, 2004.
FINANCIAL IMPACT:
The cost of the land purchase is $935,000 plus closing costs. The funds for
purchase of land needed for expansion are included in the approved budget
under the line items for Sewer System Development Charges and the Sewer
Fund.
3
or" r
PURCHASE AND SALE AGREEMENT
BETWEEN:
DANNY M. CLARK, PERSONAL
REPRESENTATIVE FOR THE ESTATE OF
LORENA M. MCNULTY, DECEASED
P.O. BOX 659
WOODBURN, OR 97071
SELLER
AND:
CITY OF WOODBURN
270 MONTGOMERY STREET
WOODBURN, OR 97071
RECITALS
PURCHASER
A. Seller is the owner of approximately 92.5 acres of land located in Marion
County, Oregon; more particularly described on Exhibit "A" attached hereto and by this
reference incorporated herein.
B. The land consists of six tax lots segregated into farmable acreage,
pasture, wooded acreage with some merchantable timber and two homesites.
Improvements constructed on the site include two dwellings, a detached garage, a loft
barn, feeder barn an equipment shed, and a storage shed.
C. For purposes of this Agreement, "Property" shall mean the land described
in Exhibit "A" together with all structures, improvements, fixtures, and standing timber
located on it and all of Seller's rights appurtenant to it, including but not limited to water
rights, mineral rights, and access rights.
D. Purchaser is a municipal corporation that desires to purchase the Property
for uses related to the expansion of its wastewater treatment plant.
NOW, THEREFORE, for value received and in consideration of the mutual
promises set forth in this Agreement, the parties agree as follows:
1. PURCHASE AND SALE OF THE PROPERTY. Seller agrees to sell the
Property to Purchaser, and Purchaser agrees to purchase the Property from Seller, on
the terms and conditions set forth in this Agreement.
2. TOTAL PURCHASE PRICE. The total purchase price for the Property is
$935,000 (the "Purchase Price"). Purchaser shall pay Seller, and Seller shall accept as
payment-in-full a total of $935,000 for the Property.
3. REMOVAL OF STOVES. Notwithstanding the inclusion of all fixtures in
the meaning of Property, Seller shall be allowed to remove the freestanding wood
stoves and the cooking stove. The oil and wood heating system for the home will
remain. Said stove removal shall be accomplished by Seller within 120 days after
Closing and Seller shall repair any damage caused by stove removal.
Page 1 - Purchase and Sale Agreement (Wastewater Property)
4
. ".,..' "
4. DISPOSITION OF FARM EQUIPMENT. Seller's farm equipment that is
presently being stored on the Property shall be allowed to remain on the Property until
120 days after Closing. Purchaser shall allow Seller to conduct an auction on the
Property on a date acceptable to Purchaser during this 120-day time period. The area
to be used for auction will be limited to approximately five acres situated between the
house and the City-owned wastewater facility; this includes the barn area. On the day
of auction and during the specified time period, public access to this area will be kept
open by the City. Seller shall bear all risk of loss and responsibility for the farm
equipment during this period and agrees to defend and indemnify Purchaser against
any and all third party claims related to Seller's conduct of the auction.
5. PRELIMINARY TITLE REPORT. Seller shall furnish to Purchaser a
preliminary title report prepared by the Title Company showing its willingness to issue
title insurance on the Property (the "Title Report"). Purchaser shall review the Title
Report and notify Seller, in writing, of Purchaser's disapproval of any unacceptable
exceptions shown in the Title Report. However, notwithstanding anything in this
Agreement to the contrary, zoning ordinances, building and use restrictions imposed by
governmental authority, utility easements and reservations in federal patents or state
deeds shall be acceptable exceptions to Seller's title. If Purchaser notifies Seller in
writing of disapproval of any unacceptable exceptions in the Title Report, such
notifications shall terminate this Agreement.
6. CLOSING.
6.1 Manner and Place of Closino. This transaction will be closed in
escrow at the Fidelity National Title Company, Woodburn office. Closing shall take
place on or before December 31, 2004. Time is of the essence under this Agreement.
6.2 Taxes. Any delinquent real property taxes shall be paid by Seller.
Real property taxes for current tax year shall be pro-rated between Seller and
Purchaser.
6.3 Title Insurance Costs. Purchaser shall pay for the cost of title
insurance required by this Agreement.
6.4 Escrow Fees. Escrow fees shall be split equally between Seller
and Purchaser.
6.5 Recordino Fees. Recording fees shall be split equally between
Seller and Purchaser.
6.6 Payment of the Purchase Price. At the time of Closing, Purchaser
shall pay to Seller the entire amount of the Purchase Price.
6.7 Events of Closino. Provided the Title Company has received the
Purchase Price and is in a position to cause the title insurance policy to be issued as
described below, this transaction will be closed as follows:
Page 2 - Purchase and Sale Agreement (Wastewater Property)
5
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(a) The Title Company shall deliver its commitment to issue a title
insurance policy described in Section 6.8;
(b) Seller shall execute a Personal Representative's Deed (the
"Deed"), to Purchaser;
(c) The Title Company shall record the Deed in compliance with
Oregon statutes.
6.8 Title Insurance. As soon as reasonably practical after Closing, the
Title Company shall be instructed to furnish Purchaser with an owner's policy of title
insurance, standard form, in the amount of the Purchase Price, insuring Purchaser's
interest in the Property subject only to the standard printed exceptions and exceptions
for the matters accepted by Purchaser pursuant to Section 5.
6.9 Possession. Seller shall deliver possession of the Property to
Purchaser immediately after Closing has occurred.
7. SELLER'S WARRANTIES.
7.1 Seller warrants that it owns good and marketable title to the
Property subject only to the standard printed exceptions and exceptions for the matters
accepted by Purchaser pursuant to Section 5.
7.2 Seller represents that to the best of Seller's knowledge the Property
has been used in compliance with all applicable laws and regulations. Seller has not
received and is not aware of any notification from any governmental agency having
jurisdiction requiring any work to be done on the Property in order for it to conform to
governmental regulations or the applicable building code.
7.3 The parties understand and acknowledge that ORS 105.470(3)
excludes Seller from the disclosure requirements contained in ORS 105.462 to 105.490.
8. PURCHASER'S REPRESENTATIONS.
8.1 Purchaser represents and covenants that it will allow no hunting on
the Property.
8.2 Purchaser represents and covenants that it will post "No Hunting"
signs on the Property to provide reasonable notice that hunting is prohibited.
9. GENERAL PROVISIONS.
9.1 Assianment. Purchaser may not assign this Agreement without the
prior written consent of Seller, which consent Seller may withhold in its sole and
absolute discretion.
Page 3 - Purchase and Sale Agreement (Wastewater Property)
6
"'!II'"' 'r
9.2 BindinQ Effect. This Agreement shall be binding upon and inure to
the benefit of the parties, and their respective heirs, personal representatives,
successors, and assigns, but nothing contained in this Section shall alter the restriction
against assignment without Seller's prior written consent.
9.3 Notices. Notices under this Agreement shall be in writing and shall
be effective when actually delivered or telecopied. If mailed, a notice shall be deemed
effective on the second day after deposited as registered or certified mail, postage
prepaid, directed to the parties as follows:
To Seller:
Danny M. Clark, Personal Representative for
the Estate of Lorena M. McNulty, deceased
P.O. Box 659
Woodburn, OR 97071
To Purchaser:
City of Woodburn
c/o John C. Brown
City Administrator
270 Montgomery Street
Woodburn, OR 97071
or to such other address as either party may from time to time designate by notice to the
other given in accordance with this Section.
9.4 Waiver. Failure of either party at any time to require performance
of any provision of this Agreement shall not limit the party's right to enforce the
provision. Waiver of any breach of any provision shall not be a waiver of any
succeeding breach of the provision or a waiver of the provision itself or any other
provision.
9.5 Attornev Fees. In the event suit or action is instituted to interpret or
enforce the terms of this Agreement, the prevailing party shall be entitled to recover
from the other party such sum as the court may adjudge reasonable as attorney fees at
trial, on any appeal, and on any petition for review, in addition to all other sums provided
bylaw.
9.6 Prior Aqreements. This Agreement supersedes and replaces all
written and oral agreements previously made or existing between the parties.
9.7 Applicable Law. This Agreement shall be construed, applied, and
enforced in accordance with the laws of the state of Oregon.
9.8 Brokers. Purchaser and Seller acknowledge and agree that they
have employed no real estate brokers or finders in connection with the sale and
purchase of the Property.
Page 4 - Purchase and Sale Agreement (Wastewater Property)
7
T" T
9.9 Chanqe in Writinq. This Agreement and any of its terms may only
be changed, waived, discharged, or terminated by a written instrument signed by the
party against whom enforcement of the change, waiver, discharge, or termination is
sought.
9.10 Invaliditv of Provisions. In the event any provision of this
Agreement, or any instrument to be delivered by Purchaser at Closing pursuant to this
Agreement, is declared invalid or is unenforceable for any reason, such provision shall
be deleted from such document and shall not invalidate any other provision contained in
the document.
9.11 Descriptive HeadinQs. The descriptive headings of the Sections of
this Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
IT WITNESS WHEREOF, the parties have caused this Agreement to be
executed in duplicate.
THIS INSTRUMENT WILL NOT ALLOW USE OF THE PROPERTY
DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE
LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS
INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY
SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING
DEPARTMENT TO VERIFY APPROVED USES.
THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN
A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS
SUBJECT TO LAND USE LAWS AND REGULATIONS, WHICH, IN FARM OR
FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A
RESIDENCE AND WHICH LIMIT LAWSUITS AGAINST FARMING OR FOREST
PRACTICES AS DEFINED IN ORS 30.930 IN ALL ZONES, BEFORE SIGNING OR
ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE
PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY
PLANNING DEPARTMENT TO VERIFY APPROVED USES AND EXISTENCE OF
FIRE PROTECTION FOR STRUCTURES.
SELLER:
PURCHASER:
Danny M. Clark, Personal
Representative for the Estate of
Lorena M. McNulty, deceased
City of Woodburn
by John C. Brown, City Administrator
Dated:
Dated:
Page 5 - Purchase and Sale Agreement (Wastewater Property)
8
..
"F I'
STATE OF OREGON )
) ss.
County of Marion )
This instrument was acknowledged before me on , 2004,
by Danny M. Clark as Personal Representative for the Estate of Lorena M. McNulty,
deceased.
NOTARY PUBLIC FOR OREGON
My Commission Expires:
STATE OF OREGON )
) ss.
County of Marion )
This instrument was acknowledged before me on
by John C. Brown as City Administrator of the City of Woodburn
,2004,
NOTARY PUBLIC FOR OREGON
My Commission Expires:
Page 6 - Purchase and Sale Agreement (Wastewater Property)
9
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PROPERTY DESCRIPTION
EXHIBIT
Page ~ of
It
')
PARCELl
Beginning at an iron pipe at the Northwest corner of Lot 5, Section 10, Township 5 South, Range
1 West of the Willamette Meridian, Marion County, Oregon; thence South 430.31 feet to a fence;
thence East along said fence line, 993.83 feet to the West line of the last parcel described in the
deed to Robert Geotz et ux, recorded April 14, 1944, in Volume 300, Page 505, Marion County,
Oregon, Deed Records; thence North 0005' West along the West line of said Geotz tract 430.31
feet to an iron pipe which marks the Northwest comer of said Geotz parcel; thence South 890 53'
West 993.83 feet to the place of beginning.
PARCEL II
Beginning at the Southeast comer of the Truman Bonney Donation land Claim No. 61 in
Township 5 South, Range 1 West of the Willamette Meridian, Marion County, Oregon; thence
North along the East line of said Donation land Claim 22.77 chains to the Southeast corner of a
tract of land conveyed to Alfred G. Moon and Esther A. Moon, his wife, by deed recorded
December 9, 1939, in Volume 243, Page 477, Marion County Deed Records, which Southeast
comer is on the line dividing Sections 3 and 10 in said Township and Range; thence West along
the South line of said Moon Tract and along the line dividing sa"id Sections 3 and 10, 5.969 chains
to the Southwest corner of said Moon Tract; thence North along the West line of said Moon Tract
and parallel with the East line of said Bonney Donation Land Claim to a point due East of the re-
entrant corner of a tract of land conveyed to Nina G. McGee by deed recorded December 1,
1930, in Volume 208, Page 437, Marion County Deed Records; thence West to said re-entrant
corner; thence South, parallel to the East line of said Bonney Donation Land Claim, 28.78 chains
to the South line of said Bonney Donation Land Claim; thence East along said South line 8.68
chains to the place of beginning.
ALSO, beginning at the Northerly Northeast corner of the abOve described tract of land, and
running thence North, parallel with the East line of the Truman Bonney Donation Land Claim to a
point on the North line of said Bonney Donation Land Claim, said point being also the Northwest
corner of the tract of land conveyed to Alfred G. Moon and Esther A. Moon, his wife, by deed
recorded in Volume 243, Page 477, Marion County Deed Records; thence West along the North
line of said Bonney Donation Land Claim 20.0 feet; thence South, parallel with the East line of
said Bonney Claim to the Northerly North line of the above described tract of land; thence East
20.0 feet to the place of beginning.
10
..
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EXHIBIT Pr
Page --2:::- of 1.
PARCEL III
Also, Lot Rve (5), Section 10, Township 5 South, Range 1 West of the Willamette Meridian in
Marion County, Oregon.
SAVE AND EXCEPT: Beginning at an iron pipe at the Northwest corner of Lot Five (5), Section
10, Township 5 South, Range 1 West of the WiIlamette Meridian, Marion County, Oregon; thence
South 430.31 feet to a fence; thence East along said fence line, 993.83 feet to the West line of
the last parcel described in the deed to Robert Goetz et ux, recorded April 14, 1944, in Volume
300, Page 505, Marion County, Oregon, Deed Records; thence North 00 05' West along the West
line of said Goetz tract 430.31 feet to an iron pipe which marks the Northwest corner of said
Goetz parcel; thence South 890 58' West 993.83 feet to the place of beginning.
ALSO, SAVE AND EXCEPT: Beginning at the quarter section corner on the South side of Section
3, Township 5 South, Range 1 West of the WiIlamette Meridian, Marion County, Oregon; thence
South 12.50 chains to an iron pipe; thence South 890 51' West 5.00 chains to an iron pipe;
thence North 12.50 chains to an iron pipe; thence North 890 51' East 5.00 chains to an iron pin
and the point of beginning, being part of the Northeast quarter of the Northwest quarter of
Section 10, Township 5 South, Range 1 West of the Wlllamette Meridian in Marion County,
Oregon.
PARCEL IV
Beginning in the center of Section 10, in Township 5 South, Range 1 West of the Wlllamette
Meridian in Marion County, Oregon; thence North 00 16' West along the quarter section line
extending North and South through the center of the said Section 10, a distance of 20.093
chains; thence South 890 45' West 10.546 chains to an iron pipe; thence South 00 18' East
20.138 chains to an iron pipe; thence North 890 29' East 10.535 chains to the place of beginning.
EXCEPTING the part lying Southerly of the North line of the Woodburn-Estacada Highway.
PARCEL V
A parcel of land lying in Lot 2 of Section 10, Township 5 South, Range 1 West, Willamette
Meridian, Marion County, Oregon and being a portion of that property described in that deed to
Fred D. and Emma Schroeder, recorded in Book 276, Page 91 of Marion County Record of Deeds;
the said parcel being that portion of said property lying Northerly of a line which is parallel with
and 100 feet Northerly of the center line of the relocated Woodburn-Estacada Highway, which
center line is described as follows:
Beginning at Engineer's center line Station 32+21.02, said station being 258.44 feet North and
5124.48 feet West of the East quarter corner of Section 10, Township 5 South, Range 1 West,
Willamette Meridian; thence North 840 11' 03" East 729.56 feet; thence on a spiral curve right
(the long chord of which bears North 86041' 03" East) 500 feet; thence on a 1909.86 foot radius
curve right (the long chord of which bears South 810 30' 37.5" East) 453.69 feet; thence on a
spiral curve right (the long chord of which bears South 690 42' 18" East) 500 feet to Engineer's
center line Station 54+04.27.
Bearings are based upon the Oregon Co-ordinate System, North Zone.
PARCEL VI
Lot Eighteen (18), WOODBURN FRUIT FARMS, Marion County, Oregon.
SAVE AND EXCEPT therefrom that portion conveyed to the State of Oregon, by and through its
State Highway Commission by deed recorded February 29, 1968 In Volume 643, Page 488, Deed
Records for Marion County, Oregon.
11
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WOODBURN
- MEMORANDUM
To:
Through:
From:
Date:
Subject:
Mayor and Council
John C. Brown, City Administrator
Mary Tennant, City Recorder ~
November 23, 2004
CERTIFIED ELECTION RESULTS - November 2, 2004 General Election
Certified results from the November 2,2004 General Election are as follows:
Mayor
Kathy Figley
Write-In
Over Votes
Undervotes
4,693
205
2
1,598
Measure 24-133: Police Facility GO Bond
Yes Votes 3,278
No Votes 2,801
Over Votes -0-
Under Votes 419
Councilor - Ward I
Walter B. Nichols
Write-In
Over Votes
Under Votes
Councilor - Ward II
Richard Bjelland
Write-In
Over Votes
Under Votes
1,223
39
I
556
456
10
-0-
204
Councilor - Ward VI
Elida Sifuentez 423
Write-In 19
Over Votes -0-
Under Votes 153
Agenda Item Review:
City Administrat~ City Attorney m
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November 29, 2004
TO:
Honorable Mayor and City Council through City Administrator
FROM:
'".:.'
Jim Mulder, Director of Community Development ,>~7
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SUBJECT: Community Development Director's Approval of Partition 04-07.
RECOMMENDATION:
No action is recommended. This item is placed before the City Council for
information purposes in compliance with the Woodburn Development
Ordinance. The City Council may call up this item for review if it desires.
BACKGROUND:
On November 19, 2004, the Woodburn Community Development Director
approved the partition of an existing 48.35 acre parcel into three parcels in the
Single Family Residential (RS) zone. The subject property is located west of
Brown Street, east of South Boones Ferry Road, south of Country Lane and north
of the city limits. The subject site is identified specifically on Marion County Tax
Assessor's Maps as T5S, R1 W, Section 18C, Tax Lot 1400. The three parcels will
have property lines corresponding to the phase lines of phases 2-6 of the Boones
Crossing Planned Unit Development (PUD). Proposed parcell (phase 2 of the
Boones Crossing PUD) is 6.36 acres in area, proposed parcel 2 (phase 3 of the
Boones Crossing PUD) is 8.45 acres in area and proposed parcel 3 (phases 4,5
and 6) is 33.54 acres in area.
The subject property is zoned City of Woodburn "Single Family Residential" (RS),
designated Residential Less Than 12 Units Per Acre on the Woodburn
Comprehensive Plan Map, and is vacant. The properties to the west (across S.
Boones Ferry Road), east and south of the subject property are zoned Marion
County "Urban Transition Farm" (UTF), designated Residential Less Than 12 Units
Per Acre on the Woodburn Comprehensive Plan Map, and are the location of
vacant land and single family dwellings. The property to the north (phase 1 of
the Boones Crossing PUD) is zoned RS, designated Residential Less Than 12 Units
Per Acre on the Woodburn Comprehensive Plan Map, and is currently vacant.
No wetlands are located on the subject property. The subject site is located
outside of the 500 year floodplain.
Agenda Item Review: City Administrat~ City Attamey@
Finance
18
.,.... ...
Mayor and City Council
November 29, 2004
Page 2
.
.
The property owners are Faye E. Zimmer & Nancy K. Bocci. The applicant is
Boones Crossing, LLC.
DISCUSSION:
None.
FINANCIAL IMPACT:
There is no financial impact associated with the recommended action.
19
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