Ordinance No. 08-09 CITY OF TIGARD, OREGON
TIGARD CITY COUNCIL
ORDINANCE NO. 08- aq
AN ORDINANCE TO REPEAL TIGARD MUNICIPAL, CODE CHAPTER 1.20 IMPLEMENTING
MEASURE 37,AND TO AMEND TIGARD MUNICIPAL CODE ADDING CHAPTER 1.21 FOR
PROCESSING CLAIMS FOR COMPENSATION PURSUANT TO QRS 195.300— 195.336,AND
CHAPTER 1.22 FOR PROCESSING REQUESTS FOR VESTED RIGHTS DETERMINATIONS FOR
PREVIOUSLY FILED MEASURE 37 CLAIMS.
WHEREAS, Chapter 1.20 of the Tigard Municipal Code was added to i-nplement State Measure 37 passed
in 2004; and
WHEREAS, On November 6, 2007 the voters of the State of Oregon approved Measure 49 to clarify and
replace Measure 37; and
WHEREAS, ORS 195.300— 195.336 sets forth die provisions of Measure 49; and
WHEREAS, the Tigard City Council has determined die need to amend tae Tigard Municipal Code in order
to be consistent tvida State of Oregon current law.
NOW,THEREFORE,THE CITY OF TIGARD ORDAINS AS FOLLOWS:
SECTION 1: Chapter 1.20 of the Tigard Municipal Code is repealed.
SECTION 2: A new Chapter 1.21 shall be added to the Tigard Municipal Code to read as follows:
"1.21.010 Purpose. The purpose of dais chapter is to implement the provisions of ORS 195.300-
195.336, (Ballot Measure 49) enacted by d-ie voters on November 6, 2007. These provisions are intended to
establish a prompt, open, thorough and consistent process that provides Claimants an adequate and fair
opportunity to present their Claims for compensation to the City.
1.21.020 Definitions.
1. The definitions set fordo in ORS 195.300, are by this reference, incorporated herein.
2. As used in dhis process, the following words and phrases mean:
"Ballot Measure 49" means tie measure enacted by the voters at die November, 2007,
general election and codified at ORS 195.300-195.336.
"City Council" means tae City Council of the City of Tigard.
"Claimant" means the person or persons who have filed a Claim or demand for
compensation pursuant to ORS 195.312 (7) and (8).
"Department" means the Community Development Department of die City of Tigard.
"Director" means tie Community Development Director for die City of Tigard.
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"Person" includes a public or private entity.
1.21.030 Claim for Compensation. A person seeking to file a Claim for compensation shall do so
by delivery of said claim to the Department. The minimum requirements for making a Claim are specified
in ORS 195.310.
1.21.040 Director's Decision and Recommendation. The Director shallreview and evaluate all
Claims received and shall process the Claims consistent with ORS 195.312 and 195.314, supplemented by
Tigard Municipal Code ("TMC") 18.390.040, subsections D - H, except that appeal of the Director's
decision shall be to dle City Council. Following review and evaluation of the Claim, the Director shall:
1. Determine that the Clain is not eligible for compensation pursuant to ORS
195.300— 195.336, and deny the Clain; or
2. Adopt an order determining that the Claim is valid and direct that the CIaimant be
compensated for the reduction in the fair market value of the property; or
3. Authorize the Claimant to use the property without application of the subject land use
regulation to the extent necessary to offset the reduction in the fair market value of the property.
The decision to allow the Claimant to use the property without application of the subject land use
regulation or to compensate the Claimant shall be based on a determination of whether the public interest
would be better served by compensating Claimant or by allowing the use without application of the subject
land use regulation.
1.21.050 Processing Fee. The fee for processing a Claim for compensation shall be in an amount
not to exceed the actual and reasonable cost of reviewing die Claim and shall be payable as follows:
1. Upon filing the Claim for compensation, the Claimant shall also deposit with the City the
amount of not less than $1,000.00 dollars as a deposit on the fee for review of the Claim.
2. The City shall keep a record of all time, materials and expenditures spent processing the
Clain. If the costs involved in processing the Claim do not exceed the deposit, the City shall return the
unused portion of the deposit to the Claimant. If the costs of processing the Clain exceed the amount of
the deposit, Claimant will receive an invoice for the excess costs, and shall be responsible to reimburse the
City for all amounts in excess of the deposit prior to issuance of a final decision by the City on the Clain.
1.21.060 Burden of Proof. Claimants shall have the burden of proof on all matters under this
chapter and under ORS 195.300 - 195.336. The Claimant bears sole responsibility for ensuring that the
record before the City contains all information and evidence necessary to support the Claim.
1.21.070 Judicial Review. Judicial review of the City's decision shall be as provided in ORS
195.318."
SECTION 3: A new Chapter 1.22 shall be added to the Tigard Municipal Code,which shall read as
follows:
"1.22.010 Purpose. The purpose of this chapter is to implement the provisions of Section 5(3) of
Chapter 424, Oregon Laws 2007 by providing a process whereby claimants under Measure 37 who were
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issued waivers of land use regulations enacted by the City before the effective date of Chapter 424, Oregon
Laws 2007, may request a decision from the City as to whether their waiver has vested .
1.22.020 Definitions. For purposes of this ordinance, the following definitions apply.
1. "Applicant" means a person who has obtained Measure 37 relief from the City and has
applied for a City Vesting Decision.
2. "Application"means an application form created by the Director and filed with the
Department by an Applicant for a City Vesting Decision.
3. "City Vesting Decision" means a written decision by City Council that, as of December 6,
2007, the Applicant did or did not have a common lav vested right,pursuant to Section 5(3)
of Chapter 424, Oregon Laws 2007, to continue and complete a use allowed pursuant to a
Measure 37 waiver.
4. "Completed Application" means an Application deemed complete by the Director.
5. "Council" means Tigard City Council.
6. "Department" means the Tigard Community Development Department.
7. "Director" means the Tigard Community Development Director.
S. "Measure 37" means Ballot Measure 37 approved by the voters in November, 2004, and
codified as ORS 197.352, 2005 replacement part.
9. "Waiver" means an order by the City Council granting Measure 37 relief.
1.22.030 City Council to Make Determination. The City Council shall determine vested rights
under Section 5(3) of Chapter 424, Oregon Laws 2007, pursuant to the criteria established by
common law and described in Section 1.22.080.
1.22.040 Basis of Determination. A City Vesting Decision shall be based on whether the
Applicant's use of the property complies with the Waiver, and whether the applicant has a common law
vested right as of December 6, 2007, to complete and continue the use described ui the Waiver.
1.22.050 Application Procedure. An Applicant who obtained a Waiver may submit an Application
to the Department containing the information required in Section 1.22.060 and any other information
necessary to address the criteria to establish a common law vested right. The Applicant is responsible for
the completeness and accuracy of all information submitted with the Application and all of the supporting
documentation.
1.22.060 Contents of Application. An application for a vested rights determination shall include
the following:
1. The name, mailing address, and phone number of the Applicant.
2. A legal description and tax lot number(s) of the subject property as well as a street address for
the property,if any.
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3. A copy of the Waiver.
4. Evidence demonstrating that the Applicant's use of the subject property is consistent with the
Waiver.
5. Information pertaining to the criteria described in Section 1.22.080 sufficient to enable the
Council to make a City Vesting Decision consistent with those criteria.
6. The application fee as set fords in Section 1.22.070.
1.22.070 Application Fee. No application shall be deemed complete unless it is accompanied by a
deposit in the amount of$1,000.00. The fee for a determination of a vested right shall be the actual cost of
processing the request for a determination including,but not limited to, costs of staff time, copying, mailing,
and legal review. Prior to issuance of a City Vesting Decision, tie costs to the City shall be deducted from
the deposit. If any portion of the deposit remains, it shall be returned to the applicant. Payment of any
costs remaining unpaid after application of the deposit is required before issuance of the City Vesting
Decision.
1.22.080 Criteria to Determine Vested Right. In determining whether an Applicant has a vested
right to continue and complete a use allowed under a Waiver, die Council shall consider and apply die
following factors:
1. The amount of money spent on developing the use in relation to the total cost of
establishing the use.
2. The good faith of the property owner.
3. Whether the property owner had notice of the proposed change in law before beginning
development.
4. The types of expenditures and whether the expenditures could apply to other uses that are
allowed under tie new late.
5. The kind of use, location and cost of the development.
6. Whedher the owner's acts rise beyond mere contemplated use or preparation, such as the
leveling of land, boring test holes, or preliminary negotiations with contractors or architects.
7. Other relevant factors appropriate to tie facts of each case and consistent with Oregon law.
1.22.090 Burden of Proof. An Applicant for a vested rights determination shall have the burden of
proof of all matters asserted in the Application, and of meeting die criteria in 1.22.080.
1.22.100 Intent. The intent of Section 1.22.080 is to recite common law criteria by which vested
rights determinations may be made. It is not the intent of this section to replace, supplement, alter or
supercede common law principles regarding vested rights.
1.22.120 Notice of Vested Rights Hearing.
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Notice of a vested rights hearing shall be given as provided in TMC 18.390.050(0), except that the
reference to the Land Use Board of Appeals shall be deleted:
1.22.130 Conduct of the Hearing.
1. At the cointmencement of the hearing, a statement shall be made to those in attendance that:
A. Lists the criteria set fords in Section 1.22.080; and
B. States that testimony and evidence shall be directed toward the relevant criteria described in
the staff report or other criteria which the person testifying believes to apply to the decision.
2. The record.
A. The record shall contain all testimony and evidence that is submitted and not rejected;
B. The City Council may take official notice of judicially cognizable facts pursuant to die
applicable late. If d-ie City Council takes official notice,it must announce its intention and allow the parties
to the hearing to present evidence concerning the fact; and
C. The City Council shall retain custody of the record as appropriate, until a final decision is
rendered.
3. Disclosure of Ex Parte Contacts and Conflicts of Interest.
A. City Council members shall disclose the substance of any pre-hearing ex parte contacts with
regard to the matter at the commencement of the public hearing on the matter. The member shall state
whether the contact has impaired the impartiality or ability of the member to vote on the matter and shall
participate or abstain accordingly;
B. Any ;member of the City Council shall not participate in any proceeding or action in which
any of the following has a direct or substantial financial interest: The member or member's spouse,brother,
sister, child, parent, father-in-law, mother-in-law,partner, any business in which the member is then serving
or has served within the previous two years, or any business with which the member is negotiating for or
has an arrangement or understanding concerning prospective partnership or employment.Any actual or
potential interest shall be disclosed at the meeting of the City Council where the action is being taken;
C. Disqualification of a City Council member due to contacts or conflict may be ordered by a
majority of the members present and voting. The person who is the subject of the motion may not vote;
D. If all members abstain or are disqualified, the administrative rule of necessity shall apply.All
members present who declare their reasons for abstention or disqualification shall thereby be re-qualified to
act;
E. In cases involving the disqualification or recusal of a hearings officer, the City shall provide a
substitute hearings officer in a timely manner subject to the above impartiality rules;
F. Members of the City Council shall not:
(1) Communicate, directly or indirectly,with any party or representative of a party in connection
with any issue involved in a hearing, except upon giving notice, and an opportunity for all parties to
participate;
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(2) Tape notice of any communication,report, or other materials outside the record prepared by the
proponents or opponents in connection with the particular case unless the parties are afforded an
opportunity to contest the materials so noticed;
G. No decision or action of the City Council shall be invalid due to ex parte contacts or bias
resulting from ex parte contacts with a member of the decision-making body if the member of the decision-
making body receiving contact:
(1) Places on the record the substance of any written or oral ex parte communications concerning
the decision or action;
(2) Makes a public announcement of the content of the communication and of the parties'right to
rebut the substance of the communication made at the first hearing following the cominunication where
action shall be considered or taken on the subject to which the communication is related;
H. A communication between City staff and the City Council shall not be considered an ex-
parte contact.
4. Presenting and receiving evidence.
A. The City Council may set reasonable time limits for oral presentations and may limit or
exclude cumulative, repetitious, irrelevant or personally derogatory testimony.
B. No testimony shall be accepted after the close of the public hearing.
C. The City Council may visit the site and the surrounding area, and may use information
obtained during the site visit to support their decision,provided the information relied upon is disclosed at
the hearing and that an opportunity is provided to rebut such evidence. In the alternative,a site visit may be
conducted by the City Council for die purpose of familiarizing the City Council with the site and the
surrounding area,but not for the purpose of independently gathering evidence. In such a case, at the
commencement of the hearing, members of the City Council shall disclose die circumstances of their site
visit and shall provide the parties with an opportunity to question each member concerning their site visit.
1.22.140. The Decision Process.
1. Basis for decision. Approval or denial of a vested light shall be based on standards and criteria set
forth in Section 1.22.080.
2. Findings and conclusions. Approval or denial of a vested right shall be based upon and
accompanied by a brief statement that explains the criteria and standards considered relevant to the
decision, states the facts relied upon in rendering the decision and explains the justification for the decision
based on the criteria, standards, and facts set forth.
3. Form of decision. The City Council shall issue a final order containing the above-referred findings
and conclusions,which either grants or denies Applicant a vested right to continue and complete their
Waiver.
1.22.150. Notice of Decision. Notice of a vested rights decision shall be mailed to the applicant
and to all parties of record within five business days after tie decision is filed by the City Council wide the
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Director. Failure to receive mailed notice shall not invalidate the action, provided that a good faith attempt
was made to snail such notice.
1.22.160. Final Decision. The decision of the City Council is the final decision of the City and is
final and effective on the date notice of the decision is mailed.
1.22.170. Review of Decision. A decision by City Council on an application for a vested right shall
be reviewed only as provided in ORS 34.010 to 34.100."
SECTION 4: This ordinance shall be effective 30 days after its passage by die Council, signature by die
Mayor, and posting by the City Recorder.
PASSED: By QuLj S vote of Council members present after being read by number
and tide only, this a�rOaay of 32008.
u. -P
athel7ne Wheatley, City Recorder
APPROVED: By Tigard City Council this�day of '20
L
CraigL-sen, Mayor
Avoroved as to form:
City Attorney
l0 , C) � ?S
Date
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