CITY
OF
PLANNING
COMMISSION
ATTENDEES:
Jerry Gentry, Chairman
Jerry Breazeale, City Manager
Suzanne Jepsen
Dave Fowler
Rod
Dan Dunnett
Duane Jones
Deborah Kendrick
Bill Kuhn, City Attorney
1. General Business.
A) Call to Order: The
B) Introductions: None.
C) Announcements:
1) Chairman Gentry announced that a full commission was present.
2) Mr. Breazeale announced that a retirement dinner for
Mayor Jepsen will be held on
D) Approval of the minutes of the Planning Commission
2. Public Hearings. None scheduled.
3. Planning Commission Action. None scheduled.
4. Old Business.
A. Flood Study Update. Mr. Breazeale reported that the flood study is underway. He has received the first draft of the hydrology report which is included in the packet. These figures reflect the amount of water that would be generated from the watershed and would come through the drainage basin. The proposal would change the effective flood discharge considerably. The biggest drop is below Hinton Creek. In Ione, they only project a 3% reduction which appears to be from the drainage from Rhea Creek. The scenario that would most likely cause flooding in this area would be winter or spring snow melt event. The document doesn’t identify what is coming in from Rhea Creek. Mr. Breazeale has asked for an accounting on this. Mr. Breazeale expects this to cause even more decrease. Mr. Dunnett questioned how the figures were arrived at and Mr. Breazeale explained that they did more thorough surveying, etc. Some of the figures used were before the dam was constructed. Mr. Fowler asked that dates of the previous studies and Mr. Breazeale stated that they were done in 1979 and 1984. He also stated that he is encouraged on the reduction of the study. New maps are planned to be available in January 2006.
5. Measure 37 Implementation. This portion of the meeting is being provided by City Attorney Kuhn. Mr. Breazeale explained that this is a hot topic at this time and there has been a lot of correspondence concerning the issue.
Mr. Kuhn stated that
he is attending the meeting to outline what the City Council
should adopt for an ordinance. In the November election,
this measure was voted upon and is the most significant land use
legislation since Senate Bill 100 which was the enactment of the
land use laws in
1. What the measure does. The measure authorizes owners of real property to file claims with the city, county, or state when a land use regulation is enacted or enforced and reduces fair market value. An individual could file a claim of restriction of a private property land use that results in a reduction of the fair market value of the property. This would affect almost every conditional use that the Planning Commission looks at.
The measure itself exempts from its application in that you cannot make a claim if the regulation adopted addresses or enforces the following:
a. Historically recognized public nuisances. Currently the City has an active a public nuisance enforcement program and regular system for reporting to the City Council. This will still remain in effect.
b. Public Health and Safety Situations. This would include fire and building codes and health and sanitation situations. A variance regulation that deals with things like setbacks for fire protection, and the city has a record that can prove that this is reasonable for that particular part of the zoning code, is satisfactory. If the regulation has to do with aesthetics or orderly development we may have Measure 37 concerns.
c. Regulations required under federal law are also exempt. The most prominent one concerning Heppner would be the floodplain ordinances since they are governed by federal law and regulations. These would restrict what you can and can’t do with private property. These are not affected by Measure 37 since they are federal requirements.
d. Regulations for selling pornography and performing nude dancing. These are exempt from Measure 37.
e. Land use of property that have been enacted prior to the acquisition of the property by the owner or family member of the owner, i.e., if you have a piece of property that has been in the family for 50 years that is going to be prior to the time that the bulk of Oregon land use laws were enacted. Senate Bill 100 was enacted in 1976, so a piece of property that has been owned before that will probably be affected. This should cover much of the property in Heppner. For example, if you buy a piece of property knowing what the land use laws are, you are stuck with them. People who had property when the land use laws came into effect can raise Measure 37 claims. The claim can be instituted when the land use regulation is enforced or enacted.
The bulk of what the Planning Commission does is not so much changing the zoning code, but when you deal with conditional uses and variances, that is clearly enforcement of a land use regulation. Every time the city makes a decision that deals with what the Planning Commission previously thought was routine, the City Attorney will have to do a Measure 37 analysis to see if we are enforcing or enacting a measure that restricts use of private property which may cost the city money. The measure says that once a claim is filed, the City has 180 days to determine what to do with it. The city has two decisions that it can make with regard to how to handle claims: They can pay what the measure says is just compensation or they can modify the particular regulation so that it doesn’t affect the property, or they can delete the regulation. They can also waive the application of that particular regulation, or they can deny the claim.
The measure authorizes the land owner to skip the city planning processes completely and sue immediately if they feel that they were affected. This will probably not be an issue since law suits are expensive. The process is going to be extremely complex and Measure 37 claims will be hard to determine. The City will have to make a determination of whether to pay a claim. The definition of ownership will have to be determined, i.e., ownership before or after the individual owns the property since ownership of the property is very expansive, down to include in-laws.
Cities will have to
decide the most effective way deal with a regulation. Affected
land owners will have to decide whether they will be affected by
this. The City of
The
Questions: Mr. Breazeale asked about the authorization to sue that some cities have put in their ordinances; don’t property owners have the ability to do this anyway, even if it isn’t in the ordinance? According to Mr. Kuhn, they do. Mr. Breazeale asked if someone files for a variance and gets approval from the Planning Commission, would they have grounds to sue. Mr. Kuhn stated that the fact that they asked for a variance, gives them grounds to file a claim. If you are dealing with a conditional use that the owner is not happy with, they can file a claim. According to Mr. Breazeale, anyone who buys property that already has zoning restrictions does not have grounds for a claim. Mr. Fowler asked if a neighbor has a right to file a claim if their property value would go down. According to Mr. Kuhn, this would be a Measure 37 claim. The advice from the Association of Oregon Counties and the League of Oregon Cities is “don’t mess with your subdivision ordinances at this time.” According to Mr. Kuhn, at this point, most everyone expects that this will stay, and is related to a land use measure that the Supreme Court determined didn’t work. There will probably not be an overriding court decision. Mr. Jones stated that he can foresee an entity that will try to make money out of this.
Mr. Kuhn stated that every land use decision will affect not only the owner, but the neighboring property owners. This is going to be a nightmare. Mr. Wilson stated that it sounds like it is going to give more leverage to the homeowner. Mrs. Jepsen stated that they had an instance in their neighborhood regarding construction of a shed that would block a view. Would this have a basis for a claim. According to Mr. Kuhn, this would be a stretch of a Measure 37 claim, but it is not sure. If it would devalue the property, a claim could be filed. There are concerns on granting of waivers. The state is going to watch cities and counties to follow their regulations. This is not new and the program will survive. Mr. Breazeale has heard pros and cons on the subject.
Mr. Jones stated that if cities have laws on the books, they are going to have to enforce them, even if someone could file a claim. The final decisions will stay with the City Council. Mr. Breazeale stated that it is pretty clear cut. Measure 37 went into effect on December 2. There have been very few claims so far, and no claims have been finalized.
Mr. Kuhn stated that you can search the League of Oregon Cities web site for more information. This site is kept very up to date. Mrs. Jepsen asked how these claims will be paid and Mr. Breazeale stated that cities would have to either raise taxes or cut services. He doesn’t think this will be a big issue in Heppner. Mr. Jones cautioned about people trying to manipulate the system.
Mr. Gentry doesn’t see any of these issues in Heppner. Mr. Kuhn stated that he also sees issues with the UGB expansion. There is a time limit on people making claims which is a two year limit. According to Mr. Breazeale, a lot will be determined by court decisions. Mrs. Kendrick sees claims arising on development proposals.
6. Information Items.
A) Correspondence.
1) Agenda for Morrow County Planning Commission meeting,
B) Communications from Commissioners. None.
Meeting adjourned at