2.07.030 City council hearing.
A. Except as otherwise provided in this section, the hearing shall be conducted by the city council in accordance with the council rules for the conduct of administrative and quasi-judicial hearings.
B. At the beginning of the public hearing under this section, the presiding officer or a member of City staff shall state:
1. The applicable substantive criteria;
2. That the hearing will proceed in the following general order: staff report, applicant’s presentation, testimony in favor of the application, testimony in opposition to the application, rebuttal, record closes, deliberation, decision;
3. That all testimony and evidence submitted, orally or in writing, must be directed toward the applicable approval criteria. If any person believes that other criteria apply in addition to those addressed in the staff report, those criteria must be listed and discussed on the record. The presiding officer may reasonably limit oral presentations in length or content depending upon time constraints. Either the City or the claimant may require that the appraiser or other person relied on by the other party attend the hearing with all relevant materials and be available for questioning by the council. If the person is not available, the council may strike from the record any information provided by the person at any stage. Any party may submit written materials of any length while the public record is open;
4. Failure to raise an issue on the record, with sufficient specificity and accompanied by statements or evidence sufficient to afford the City and all parties to respond to the issue, may preclude appeal on that issue to the appropriate appellate tribunal;
5. Any party wishing a continuance or to keep open the record must make that request while the record is still open;
6. The council members must disclose any ex parte contacts, conflicts of interest or bias before the beginning of each hearing item and provide an opportunity for challenge. Advised parties must raise challenges to the procedures of the hearing at the hearing and raise any issue relative to ex parte contacts, conflicts of interest or bias, prior to the start of the hearing.
C. Any request made for an opportunity to continue the hearing, to present additional evidence or testimony or to make final written argument shall be subject to restriction or elimination, as the city council determines convenient or necessary to assure that a written decision is made and sufficient administrative time remains thereafter to cause payment of compensation or waiving enforcement of the regulation within the required 180 days from the date the claim was deemed complete. The council shall have sole discretion as to whether to admit evidence, but material required to be submitted as part of the claim or that the director should have received and considered at the time of making the director’s review and recommendation shall not be admitted unless the council finds that extraordinary circumstances beyond the control of the offering party prevented earlier submittal. The council may condition receipt of new information from the claimant on the claimant stipulating to an extension of time for consideration of the material and a waiver of the 180-day deadline provided for under Measure 49.
D. The council shall determine whether the following criteria have been met:
1. The application is complete;
2. The claimant is a qualifying property owner under Measure 49;
3. All owners of the property have consented in writing to the claim;
4. The subject property is located within the City;
5. The claimant was lawfully permitted to establish a residential use on the property on the date the claimant acquired the property;
6. One or more land use regulations prohibit establishing single-family dwellings on the property;
7. The establishment of single-family dwellings is not prohibited by a land use regulation described in ORS 197.352(3);
8. The land use regulation described in subsection (D)(6) of this section was enacted after the date of the property, or any portion of the property, was brought into the boundaries of Metro;
9. The land use regulation that is the basis of the claim was enacted after the date the property was annexed to the City;
10. The enactment of the land use regulation that is the basis of the claim caused a reduction in the fair market value of the property as determined by an appraisal consistent with the provisions of BC 2.07.015(F)(7)(b); and
11. The number of single-family dwellings identified by the claimant was the highest and best use of the property at the time of enactment of the land use regulation.
E. At the conclusion of the hearing the city council shall announce its decision orally. Such decision shall not be considered the final City decision until the city council has adopted written findings in support of its decision. The city council shall determine whether the applying owner may be entitled to compensation under Measure 49 unless the City grants a waiver of the regulation and, if so, the amount of compensation that may be due and shall compare the public benefits from application of the regulation to the owner’s private real property to the public burden of paying the required compensation to the owner if a waiver of the regulation is not granted, taking into consideration the financial resources of the City for the payment of such claims. If the city council has determined that either compensation or a waiver is or may be required, then based on this comparison:
1. If the city council finds that the public burden of paying the required compensation, taking into consideration the City’s financial resources for the payment of such claims, is sufficient to justify denying the public benefit from application of the regulation to the owner’s private real property, the city council may grant a waiver of the regulation to the extent necessary to avoid the owner or owners being entitled to compensation;
2. If the city council finds that the public benefit from application of the regulation to the owner’s or owners’ private real property is sufficient to justify the public burden of paying the required compensation, taking into consideration the City’s financial resources for the payment of such claims, the city council may deny a waiver of the regulation and identify a specified amount of compensation to be paid;
3. The city council may find that the public benefit from application of the regulation to the owner’s private real property is sufficient to justify the public burden of paying some of the required compensation, taking into consideration the City’s financial resources for the payment of such claims, but that other of the public benefits are not sufficient to justify the public burden of paying the balance of the required compensation. If so, the city council may grant a waiver of the regulation to the limited extent necessary to avoid the owner being entitled to compensation as to that part of the specified regulation providing public benefit and identify a specified amount of compensation to be paid as to that part of the regulation as to which a waiver from enforcement is not granted; or
4. The city council may take some other appropriate action, including a resolution of intent to acquire an interest in the property by condemnation;
5. The city council, in its discretion, may impose a condition that its decision will be effective only if the owner or owners of the private real property sign an agreement, in a form acceptable to the City, that waives any further claims in relation to application of the subject regulation to the private real property as to which a waiver or compensation is sought;
6. The city council may take other appropriate action conditional on the City receiving a defined amount of contributions from others, such as persons who believe they would be negatively affected by an exemption, by a specified date. In the event the city council makes such a conditional decision, then the Finance Department shall establish an account into which it shall deposit all contributions the City has received for the payment of compensation. On the date specified for receipt of the defined amount of contributions, the Finance Department shall certify whether the defined amount of contributions has been received. If the defined amount of contributions has been certified as received, then the compensation shall be paid and the license deemed denied or granted only to the limited extent approved by the city council, as of the payment date. If the defined amount of contributions has been certified as not received, then the license shall be deemed granted as of the certification date and all contributions received by the City shall be returned to the persons who made the contributions.
F. If the council finds the criteria set forth in subsection (D) of this section have been met, the council shall adopt a written order (which may be combined with the written findings and conclusion) either directing that payment of just compensation be made to the property owner and to any other persons holding an interest in the property, in such manner as approved by the city attorney, or issuing a waiver of the regulation in accordance with BC 2.07.045.
G. A copy of the findings, conclusion and order shall be mailed by first-class mail to:
1. The claimant and to all other interested persons who submitted written testimony or testified before the city council;
2. The government agencies that were provided notice of the claim pursuant to BC 2.07.020(B)(3) through (5). [BC 2.07.030, added by Ordinance No. 4472, 2/25/08; amended by Ordinance No. 4794, 12/1/20]