HOUSE COMMITTEE ON LAND USE

 

 

June 08, 2005 Hearing Room 50

1:30 P.M. Tapes  121 - 123

 

MEMBERS PRESENT:            Rep. Bill Garrard, Chair

Rep. Gordon Anderson, Vice-Chair

Rep. Mitch Greenlick, Vice-Chair

Rep. Robert Ackerman

Rep. Mary Nolan

Rep. Patti Smith

Rep. Mac Sumner

 

STAFF PRESENT:                  Sam Litke, Committee Administrator

Lindsay Luckey, Committee Assistant

 

 

MEASURES/ISSUES HEARD:

                                                HB 3120 – Work Session

 

 

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

TAPE 121, A

002

Chair Garrard

Calls the meeting to order at 2:06 p.m. and opens a work session on HB 3120.  Asks sponsors of the -3 amendments to come forward.

HB 3120 – WORK SESSION

056

Lane Shetterly

Director, Department of Land Conservation and Development (DLCD).  Introduces the panel and submits proposed amendments to HB 3120 to replace the -3 amendments (EXHIBIT B) and a summary of the document (EXHIBIT A).

097

Shetterly

Discusses the work group and the goal of consensus.  Mentions the attorneys who helped to draft the amendments.

104

Jon Chandler

Oregon Homebuilders Association.  Discusses the status of the amendments and the intent of the work group to address Measure 37 (M37) in workable, fair way while leaving the Oregon land use system in tact.  Remarks that there is no compensation piece in these amendments and explains this issue would be addressed in separate legislation.

131

Chair Garrard

Complements the group on this objective.

 

Dave Hunnicutt

Oregonians in Action (OIA).  Discusses his involvement with the process of developing the amendments and the high level of consensus on most parts.  Urges the committee to listen to the detailed testimony of Gary Klein and Dan Cooper who will go through the draft more thoroughly and encourages consideration of the draft from the committee.

157

Rep. Nolan

Expresses interest in seeing some representation of how these changes will effect Oregon communities and the parties involved, suggesting a map or some visual aide.

179

Shetterly

Responds he will try to provide something while noting the difficulty of trying to quantify the effects of M37 and prospective claims. 

 

Rep. Nolan

Confirms that she would like information on current law, M37 and the proposed amendments.

208

Glenn Klein

Harrang Long, on behalf of League of Oregon Cities.  Introduces Dan Cooper, General Counsel for Metro. 

 

Klein

Gives broad overview of what the amendments will do and notes intention to go over the summary (EXHIBIT A).

235

Klein

Begins discussion of Section 1 dealing with “existing” M37 claims and the possibility of filing under “new” provisions.

263

Chair Garrard

Asks about why “new” and “old” claims would be treated differently with regard to the transferability issue.

 

Klein

Responds that the new claims would be subject to other procedures.

 

Chair Garrard

Verifies there are different procedures for different claims to be filed.

 

Klein

Confirms this.  References Section 26 which would make distinctions between claims made before March 15, 2005 and those after.  Elaborates on how this would effect transferability.

291

Klein

Discusses provisions in Section 1 that relate to judicial review of pre-March 15, 2005 claims and elaborates on their reasoning.

 

Klein

Notes they have made explicit the authority for state agencies to waive claims based on state statutes.

327

Klein

Talks about Section 3, related to definitions, noting they are similar to those in SB 1037 and the -1 amendments to HB 3120.

 

Klein

Discusses Section 4 dealing with the scope of the M37 claim and details the provisions within. 

375

Klein

Points to Page 2 of the summary and discusses possible additional exemptions.

 

Chair Garrard

Asks if those exemptions would affect any claims made up to this point.

 

Hunnicutt

Responds that they do not know.

400

Klein

Discusses Section 4 (3) and remarks on distinctions between provisions for retroactive and prospective claims.

430

Klein

Discusses Section 4 (4), which addresses how reduction of value should be determined and directs the Department of Administrative Services (DAS) to adopt administrative rules for this purpose.

TAPE 122, A

009

Klein

Details Section 4 (5), dealing with authority of public entities to waive land use regulations.

019

Klein

Notes that Sections 5-7, starting on page 8 of (EXHIBIT B), deal with the claims process and is similar to SB 1037 and the HB 3120 -1 amendments.

 

Klein

Gives details of the claims process, noting multiple filing of claims, timelines and a list outlining what the contents of claims must be (Page 9, EXHIBIT B).

073

Klein

Continues discussion of the claims process and mentions a cap for the amount public entities may charge.  Outlines possibilities for determination of a complete claim.

087

Rep. Nolan

Asks about the status of a claim if a property owner submits an incomplete claim and says the claim is complete.

 

Klein

Responds with details of how the process would continue.

107

Klein

Continues discussion of the process once the claim is determined to be complete.   Details how notification process would work in Section 6 (2) found on (Page 11, EXHIBIT B).

139

Klein

Notes exceptions in the timeline allowed for additions to the record for a claim.

145

Klein

Describes the process once the record is closed and the government makes a decision on whether or not the claim is valid.  Notes possible barriers which may prevent development after a claim is deemed valid. 

 

Chair Garrard

Asks if this situation would trigger another M37 claim. 

 

Klein

Responds negatively with one exception and elaborates on that circumstance.

 

Chair Garrard

Asks if a local government made a decision in this circumstance if it would be binding on state agencies.

185

Klein

Responds affirmatively and gives an example. 

208

Klein

Discusses Section 7 on (Pages 12-13, EXHIBIT B) which would allow for the joint filing of a land use application and a M37 claim and explains how the process would function.

237

Klein

Discusses Section 8 on (Pages 13-14, EXHIBIT B) detailing judicial review.  Notes that anyone who is adversely affected can challenge or intervene in a portion of the proceedings.

268

Chair Garrard

Remarks on this provision and comments on testimony before the committee in the interim about parties with no standing in the land use decision intervening in the proceedings.

 

Klein

Clarifies that they are including the participation of a party who is “adversely affected” and elaborates on the process.

290

Rep. P. Smith

Asks for an example of someone  “adversely affected”.

 

Hunnicutt

States there are currently two standards, “adversely affected” or “aggrieved” and notes the distinction between them.

323

Chair Garrard

Updates Rep. Ackerman on their discussion.

 

Klein

Continues detailing the process of judicial review including the appeals process.

TAPE 121, B

003

Klein

Talks about Sections 12 -13 dealing with the use of waivers and transferability summarized on (Page 3, EXHIBIT A).

049

Klein

Describes Sections 14 - 15 which have provisions for M37 claims within urban growth boundaries and the surrounding areas summarized on (Page 3, EXHIBIT A).

 

Rep. Nolan

Asks about Section 13 and for further explanation of the time period allowed for transfer.

061

Klein

Gives details of waiver transferability and describes an example.

066

Dan Cooper

Attorney, Metro. Adds a point on the waiver’s transferability if the land is developed.

 

Rep. Nolan

Acknowledges this point.

 

Cooper

Describes finance ability as the problem they are trying to solve in this case.

 

Hunnicutt

Gives a hypothetical example of waiver length.

102

Rep. Nolan

Asks for an explanation in the same example if the enacted date of the regulation were later.

 

Klein

Gives details about the case and how long the property owner would have to file a claim and once obtaining a waiver, the length of development rights.

 

Rep. Nolan

Verifies that every piece of property or property owner could be eligible to file a M37 claim on regulations enacted after Jan 1, 2006.

 

Klein

Responds affirmatively, assuming the regulation restricts the use of property.

127

Rep. Nolan

Discusses the effects on the value of local and state government regulations and the length of valid waivers.  Asks how the government could enact regulations and have certainty they could apply them.

 

Klein

Remarks on discussions about this issue and asserts that not many regulations will fall outside of the exemptions that prohibit M37 claims.  Speculates more time will be spent by governments analyzing possible effect of regulations on property values.

170

Rep. Nolan

Asks if these amendments address whether regulations will be considered in total or separately and asks how diminution of value will be determined.  Gives the example of a package of regulations enacted by a local government some of which would create benefit while some may adversely effect property owners. 

184

Klein

Defers to Cooper.

 

Cooper

Responds he is uncertain.

 

Rep. Nolan

States her interest in knowing eventually and not leaving the point open to interpretation.

 

Klein

Notes that if the issue is addressed is it dealt with implicitly, not explicitly.

194

Rep. Ackerman

Asks if a co-owner is not a family member if they are still eligible to file a claim under the act.

 

Klein

Responds affirmatively but only if all co-owners approve.  Adds there will be no claim if all owners do not agree.

 

Rep. Ackerman

Gives an example of how a waiver  may be transferred and asks if his interpretation is correct.

 

Klein

Responds that the bill language says that a waiver can be transferred for 10 years or up to 10 years after final decision and references (Page 16, EXHIBIT B).

 

Rep. Ackerman

Asks if his interpretation was correct.

 

Klein

Confirms this.

 

Hunnicutt

Verifies Rep. Ackerman’s testimony.

230

Rep. Ackerman

Clarifies his testimony.  Asks if the issue of what type of recording should happen to identify what land is subject to the waivers is important.

 

Klein

Reports they have incorporated a change so that a waiver is not effective until it has been recorded with the county.

 

Rep. Ackerman

Asks for clarification of a point on unlimited transferability.

 

Klein

Elaborates on circumstances for waivers to continue.  Gives an example.

 

Rep. Ackerman

Explains his interpretation.

255

Rep. Nolan

Verifies her understanding of when someone would be able to act on their waiver.

 

Klein

Explains that the waiver itself will not become valid until it has been recorded on the property and the timeline begins.

 

Rep. Nolan

Verifies this is at the owner’s initiation.

 

Klein

Confirms this.

293

Cooper

Reiterates their intention on this section. 

290

Klein

Discusses Section 14 dealing with additional criteria for valid M37 claims inside urban growth boundaries (UGB).

327

Rep. Ackerman

Asks if the types of regulations mentioned have restricted the property use and can be waived.

 

Klein

Describes how the process would work in this section.

 

Rep. Ackerman

Restates his question.

 

Rep. Nolan

Comments this would apply just within UGBs.

 

Cooper

Discusses Section 15 (Page 17, EXHIBIT B) and outlines reasons for creating  provisions for M37 claims on lands just outside UGBs. 

390

Cooper

Outlines the process of establishing “study areas” for future UGB expansions. 

TAPE 122, B

012

Cooper

Points out that the ultimate decision on UGB expansion will be made consistent with current law.

 

Chair Garrard

Asks how long this would be in effect.

 

Cooper

Responds 2015 and elaborates on their reasoning.  Suggests setting up an interim committee to deal with this and other issues.

038

Chair Garrard

Asks if under this provision multiple owners would be able to merge onto a single M37 claim.

 

Cooper

Responds negatively.

 

Chair Garrard

Asks how arbitrary the decision of a 15 year period was.

 

Cooper

Clarifies that it is 10 years.

 

Rep. Nolan

Comments that it parallels the 10-year waiver period.

058

Cooper

Explains the reasoning for the date.

 

Chair Garrard

Asks how often the UGB has been expanded within the Metro district.

 

Cooper

Responds three or four times since 1997.

 

Chair Garrard

Comments the process happens often.

 

Cooper

Agrees and makes comments on other UGB expansions.

096

Cooper

Discusses Sections 17-18 which include provisions for rural areas.  Describes the tract of record provision and limits on retroactive claims for property outside UGBs.  

189

Chair Garrard

Notes there are different types of septic systems and asks if the provisions discussing limitations on development take this into account.

 

Cooper

Responds that they leave that determination up to the health regulation mechanism.  Outlines what is not allowed with regards to septic systems.

210

Cooper

Adds that the septic tank and well issue apply in all land outside of UGB land.  Details provisions for cluster developments.

250

Hunnicutt

Adds that in Section 18, retroactive claims made under the Forest Practices Act would also be eliminated.

 

Cooper

Explains that on Section 18 4(c) (Page 20, EXHIBIT B) does not represent what he said because the drafting is incomplete. 

269

Rep. Anderson

Comments on their intention which he did not read in M37 and suggests limiting the size of parcel rather than limiting the number of dwellings.

 

Hunnicutt

Responds that most applications will not be for more than 100 units outside of UGBs and explains that OIA is comfortable with the provisions in this section.

314

Rep. Anderson

Asks for explanation about provisions not supportive of new technologies.

 

Cooper

Responds that their intention was not against new technology, but against higher density development.  Explains the reasoning for their limitations.

344

Rep. Anderson

Discusses his preference for new technology for safety reasons.

 

Hunnicutt

References HB 2705 which addressed this issue.

 

Rep. P. Smith

Asks Hunnicutt why there is a cap on development.

 

Hunnicutt

Responds that the cap provides assurance to those who are concerned about the scale of development outside UGBs.

396

Klein

Explains that Sections 19-20 are conforming amendments.  Discusses Sections 21-25.

TAPE 123, A

012

Klein

Reports he previously discussed Section 26 and explains that Section 27 adds an emergency clause.

 

Chair Garrard

Makes announcements and adjourns the meeting at 3:56 p.m.

 

 

EXHIBIT SUMMARY

 

  1. HB 3120, summary of -3 amendments, Lane Shetterly, 4 pp
  2. HB 3120, proposed replacement of -3 amendments, Lane Shetterly, 25 pp