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Minutes - 11/29/2004 Spec Mtg SPECIAL COUNCIL MEETING MINUTES NOVEMBER 29,2004 TAPE READING 0001 DATE. COUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, NOVEMBER 29,2004. CONVENED. The special meeting convened at 7:00 p.m. with Mayor Figley presiding. 0008 ROLL CALL. Mayor Councilor Councilor Councilor Councilor Councilor Councilor Figley Bjelland Cox Lonergan McCallum Nichols Sifuentez Present Present Present Present Present Present Present (7:20 pm) Staff Present: City Administrator Brown, City Attorney Shields, Public Works Director Tiwari, Community Development Director Mulder, Finance Director Gillespie, City Recorder Tennant 0056 COUNCIL BILL 2544 - ORDINANCE REGARDING MEASURE 37 CLAIMS~ ESTABLISHING PROCESS TO EVALUATE SAID CLAIMS SO THAT THE CITY CAN DECIDE SAID CLAIMS ON A RATIONALE BASIS. Councilor Cox introduced Council Bill 2544. Recorder Tennant read the two readings of the bill by title only since there were no objections from the Council. Councilor Cox requested an explanation of Section 2 relating to the Accrual of Claims since he had interpreted the "except in cases..." language to cover all cases. City Attorney Shields stated that he had attempted to draw a distinction between the actual measure language where it talks about enactment of a new land use regulation, such as down-zoning of property, versus enforcement of a land use enactment. It is his belief that the Council needs an opportunity to decide in specific cases if they are going to move ahead and enforce an ordinance or do a waiver. The Council is in a position where they need to uphold the other land use laws and the Council is a fiduciary of public funds. In an individual case, the Council needs to enforce and implement Ballot Measure 37 but at the same time have a reason for when they waive a regulation. Councilor Cox stated that they had debated at the last meeting about the significance of the word "enforcement" but no firm conclusion was made at that meeting. He stated that if the word is used in the ordinance then the Council needs to know the definition of "enforcement" of a land use regulation. Attorney Shields expressed his belief that enforcement does not mean just having a regulation on the books and the Council has no opportunity to look at it in the context of Page 1 - Special Council Meeting Minutes, November 29,2004 .. 'm r SPECIAL COUNCIL MEETING MINUTES NOVEMBER 29,2004 TAPE READING Measure 37. Additionally, even if the existing ordinance is on the books, he believes there is no cause of action unless the City enforces the ordinance. Discussion was held regarding language adopted by other jurisdictions in addition to Attorney Shields' interpretation of Measure 37 language. Councilor Cox disagreed with the interpretation in that he did not feel that the measure intends that claimants need to spend several thousand dollars to submit a permit application that they know will be denied because it is against the City's pre-existing rules. A Measure 37 claim would then be filed and, in his opinion, the courts would uphold the claim. Mayor Figley stated that she would like to reserve the right to have an action go through the existing process, such as a variance process, which if approved, would possibly negate a claim. Councilor McCallum stated that he would also like to have property owners go through the City's process. Councilor Cox stated that he could not argue with the desirability of what the Mayor and Councilors are saying but his interpretation of the bill clearly says that a claim can be filed within less than 2 years and before the effective date of Measure 37 or the submitting of an application. In his opinion, the language in the draft ordinance is contrary to the language in Measure 37. Attorney Shields stated that the draft ordinance language would give him an opportunity to argue the issue of enforcement versus enactment. Councilor Bjelland stated that the burden of proof would be on the claimant to show that they have been damaged in order to establish the claim. 1173 Councilor Cox referred to Section 3 (Definition - Exempt Land Use Regulation), subsection 2, which, for the most part, tracks language in Measure 37 but it adds a number of activities that are not listed in the measure. City Attorney Shields stated that Measure 37 states "such as" and the additional listed items are similar exemptions that can relate to health and safety. The fact that they were added to the ordinance was noted in the staff report. Discussion was held on the list of activities and Attorney Shields agreed that there may be claims filed that are not exempt because they do not meet the public health and safety criteria. 1779 Councilor Cox referred to Section 4(B)(8) and suggested that this subsection should be deleted because he felt that the courts will determine the value date. Attorney Shields agreed that the language could be deleted as proposed since Measure 37 does define valuation. 2337 Councilor Cox referred to Section 7 ( C)(3) and expressed his opinion that the notice would become very wordy and very confusing to the public if all of the information outlined in this subsection is provided in the public notice. He suggested that a brief but concise notice would be more appropriate and that the last sentence in subsection (3) could be deleted. Page 2 - Special Council Meeting Minutes, November 29,2004 "lII'" T SPECIAL COUNCIL MEETING MINUTES NOVEMBER 29,2004 TAPE READING Attorney Shields agreed with Councilor Cox's suggestion. Councilor Cox questioned the meaning in Section 7(I)(g) relating to a denial of a claim based on the land use regulation in question not being an enactment of the City. Attorney Shields stated that a person could be making a claim on a regulation that is not a City regulation. He stated that he could envision this happening more within the County but there could be a situation involving a piece of property that the City has an area of interest in that is outside of the City but within the urban growth boundary. Councilor Cox questioned if the City would need to turn down an application in order for a person to have a claim (reference to Section 7(I)(I)(h)). He stated that this issue was discussed previously and did not feel that an application needed to be filed in order to file a claim under Measure 37. Councilor Bjelland expressed his opinion that this was a conservative approach and he would rather take the conservative approach at this time. Councilor Cox referred to Section 7(M) and stated that he agreed with the first sentence but did not understand what was intended by the last sentence. He questioned if a person received a waiver or modification could they then sell the property to a developer for development. Attorney Shields stated that if a waiver was received then it would be an open question. In his opinion, if the license is personal in terms of the waiver and a third party then acquires the property, it will create a practical problem but the personal waiver would not transfer. Following discussion on this section, it was suggested that the sentence be revised to address title transfers before a development, which may include construction phases, which have been completed. 3600 Councilor Cox referred to Section 8(A) relating to the deposit and expressed his opinion that the language in this subsection of the draft ordinance is contrary to what was discussed at the last meeting. Administrator Brown agreed that this section needs to be modified and the following subsections still give the City the right to collect costs in excess of the $500 if the City prevails. Councilor Cox stated that his final comment involves Section 12 regarding attorney fees. He expressed his opinion that Measure 37 does not include this provision and it should not be included in the draft ordinance. Attorney Shields stated that he could try to argue reprocity under the statute itself in order to collect attorney fees incurred by the City. He stated that this is not that common of a provision other ordinances the has seen drafted and/or adopted by local jurisdictions. 4500 Discussion was held regarding the need to protect taxpayer dollars and recover attorney fees whenever possible. Councilor Cox also questioned how a lien would be filed if the claimant did not pay the final bill relating to the claim processing. Page 3 - Special Council Meeting Minutes, November 29, 2004 m T SPECIAL COUNCIL MEETING MINUTES NOVEMBER 29, 2004 TAPE READING Attorney Shields stated that the City could file a lien in the municipal lien docket which would encumber the property and the City could go to Circuit Court to affirmatively enforce the lien. Councilor Lonergan questioned if, under Section 7(D), the claimant needs to submit the comments at the time the claim is filed or does it refer to persons other than the claimant. Attomey Shields stated that this subsection could be deleted since written and oral comments are included in Section 7( C)(3). 5185 Mayor Figley called for a recess at 8:15 pm and reconvened the meeting at 8:25 p.m.. Councilor Cox stated that he would like to revisit Section 2 regarding Accrual of Claims since he strongly feels that an applicant does not need to come forward with a specific proposal in order to file a claim. Attorney Shields stated that his argument would be that the Council needs a rational basis to decide a claim since the Council has a legal obligation to enforce the law and existing regulations, and not to payout public money to private individuals without some kind of rational basis. A person needs to bring in sufficient information for the Council to decide the claim. Councilor Cox agreed that the Council needs to have a basis for allowing a claim and the City will rely on the claimant to give the City the information if possible. However, his reading of the ordinance seems to say that if the claimant gives the Council a rational basis then the claimant has a claim. Attorney Shields acknowledged that Councilor Cox has made a point but reiterated that this measure is very unclear and the draft ordinance is an attempt to layout some kind of rationale where the Council can balance the interest and, if the City does go to court, he could argue that the claim has not accrued if the claimant has not given the City a chance to address the enforcement issue. He agreed that Ballot Measure 37 does not require that a claimant apply for a land use permit in order to submit a claim to the City. He reminded the Council that the City will need to revisit this ordinance once the legislature has addressed Measure 37 issues. Tape 2 Mayor Figley stated that there are five amendments that need to be voted on before a final vote is taken on the ordinance. The amendments are as follows: A) Claims Filing Procedure Section 4(B)(8): BJELLAND/LONERGAN.... amend by deleting subsection 8 in its entirety and the succeeding paragraphs be renumbered. On roll call vote, the motion passed 5-1 with Councilor Nichols voting nay. B) Claim Review Process Section 7( C)(3): COX/SIFUENTEZ.... amend this subsection by deleting the second sentence beginning with the word "include....". On roll call vote, the motion passed unanimously. Page 4 - Special Council Meeting Minutes, November 29, 2004 , '" "IIr.. T" SPECIAL COUNCIL MEETING MINUTES NOVEMBER 29, 2004 TAPE READING C) Claim Review Process Section 7(M): MCCALLUM/SIFUENTEZ... amend this subsection by deleting the second sentence in its entirety beginning with "Any transfer...". On roll call vote, the motion passed unanimously. D) Deposit and Final Bill Section 8(A): MCCALLUM/COX... amend Section 8(A) by deleting the third sentence beginning with the words "At such time..." in its entirety.' On roll call vote, the motion passed unanimously. E) Claim Review Process Section 7(D): COX/SIFUENTEZ... amend the bill by deleting Section 7(D) in its entirety and changing the letter designation of the following subsections in Section 7. On roll call vote, the motion passed unanimously. Councilor Cox stated that he would vote yes on this ordinance as amended with extreme reluctance but feels that it is important to get an ordinance in place before the effective of the measure. On roll call vote, the bill, as amended, passed by unanimous vote of the Council. Mayor Figley declared Council Bill 2544 duly passed with the emergency clause. 0406 LAND PURCHASE AGREEMENT FOR EXPANSION OF WASTEWATER TREATMENT FACILITY (Seller: Danny M. Clark. Personal Representative for the Estate of Lorena M. McNulty. Deceased). Mayor Figley stated that a revision to the agreement was distributed to the Council just prior to this meeting. Councilor Cox stated that he had reviewed the document carefully and the he feels that the staff has done a good job in negotiating for this necessary piece of property and the contract has been carefully and professionally drawn. COX/MCCALLUM.... authorize the City Administrator to execute the agreement for the purchase of 92.5 acres. The motion passed unanimously. 0470 CERTIFIED ELECTION RESULTS. The certified results from the November 2, 2004 General Election are as follows: Mayor: Measure 24-133: Police Facility GO Bond Kathy Figley 4,693 Yes Votes 3,278 Write-In 205 No Votes 2,801 Over Votes 2 Over Votes -0- Under Votes 1,598 Under Votes 419 Page 5 - Special Council Meeting Minutes, November 29,2004 SPECIAL COUNCIL MEETING MINUTES NOVEMBER 29, 2004 TAPE READING Councilor - Ward I : Walter B. Nichols Write-In Over Votes Under Votes 1,223 39 1 556 Councilor - Ward II: Richard Bjelland Write-In Over Votes Under Votes 456 10 -0- 204 Councilor - Ward VI: Elida Sifuentez 423 Write-In 19 Over Votes -0- Under Votes 153 MCCALLUM/NICHOLS...certification of the canvass of ballots be acknowledged by the Council. The motion passed unanimously. 0553 PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS: A) Community Development Director's Approval of Partition 04-07 (Boones Crossing) allowing for an existing 48.35 acre parcel to be partitioned into three parcels in a Single Family Residential (RS) zone. No action was taken by the Council to call this action up for review. Councilor Cox did mention that he would be unable to attend the next Focus Group meeting and, as a housekeeping item in the development ordinance, a change should be made to the language relating to the call-up of an item in that the call-up language should state the next regular meeting of the Council rather than the next meeting of the Council. 0617 ADJOURNMENT. COX/MCCALLUM... meeting be adjourned. The motion passed unanimously. The meeting adjourned at 8:50 p.m.. APP ATTEST~~~-+' Mary T enn nt, Recorder City of Woodburn, Oregon Page 6 - Special Council Meeting Minutes, November 29, 2004 ~ .. 't' 11'