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Dec 8, 2017 - Further, the Oregon courts have confirmed local government authority to require non-remonstrance agreements in this manner. .... Development Director. City of Newport. Attest: Sherri Marineau. Executive Assistant. Page 2. FINAL ORDER Minor Replat No. I-MRP-17/Central Lincoln. EXHLBIT_ t-. PAGEI ...

City of Newport

Community Development Department

Memorandum To:

Newport Planning Commission

From:

Derrick Tokos, Community Development Directo1\

Date:

February 23, 2018

Re:

Appeal of Community Development Director’s Approval of a Minor Replat (File 1M RP-17)

On January 17, 2018, the Community Development Director issued a decision approving a minor replat application filed by the land owner, Central Lincoln People’s Utility District, to reconfigure Lot 3 and a portion of Lots 2 and 4, Block M, Harborton Subdivision, to separate an existing utility substation from the balance of the former Central Lincoln People’s Utility District Maintenance Facility. The property is located at the northeast cornet of SE 4Qth Street and SE Ash Street. The end result is a parcel containing the substation that is 1.43 acres in size, with the balance of the property being configured as an 8.30 acre parcel (Exhibit 1). Central Lincoln filed this application for the purpose of positioning the larger parcel for resale and that larger parcel is under contract with a potential buyer. Appellant filed a timely appeal challenging Condition No. 3 of the Community Development Director’s decision, which reads as follows:

“3. The property owner shall sign and record a Land Improvement Waiver of Remonstrance Agreement related to future widening and improvement of SW Ash Street prior to approval of the final plat.” This condition of approval was included because it is required to satisfy the approval criterion for minor replats listed in Newport Municipal Code (NMC) section 1 3.05.095(A)(4), which states: “The applicant has agreed to sign consent to participate in sewer, water, or street local improvement districts that the subject lots would be part of once those districts are formed. Said consent shall be a separate document recorded upon the lots subject to the partition. The document shall be recorded prior to final plat approval.” Imposition of the condition further allows the City to make the finding that public facilities are adequate to serve the proposed replat even though SW Ash Street, a designated collector street, is not currently built to the collector street standard specified in the Newport Comprehensive Plan (Exhibit 2). The standard requiring adequate public facilities is listed under NMC 13.05.095(A)(5), which reads: “Public facilities serving the partition are adequate under Section 13.05.045. Proposed Streets within the partition comply with the standards under Section 13.05.015, including any allowed modifications or a variance has been obtained.” Appellants has provided a series of arguments as to why they believe Condition No. 3 should be lifted. Those arguments are contained in the appeal document, which also includes a copy of the Community Development Director’s decision and final order (Exhibit 3). Staffs response to appellant’s arguments are summarized below: Page 1 of2

Appellant’s allege that Condition No.3 of the Director’s decision should be set aside because the City failed to establish an essential nexus and prepare rough proportionality findings as required under Koontz V. St. Johns River Water Management District., 570 US 593 (2013). In Koontz, a permitting agency refused to grant a developer a building permit until the developer either reduced the size of the development and granted a conservation easement or funded offsite environmental impact mitigation work. Koontz involved a “monetary exaction” which is not at issue here. A condition requiring a waiver of remonstrance to the formation of a Local Improvement District (LID) is not an exaction because the waiver does not take a real property interest. Rather, it precludes a land owner’s opposition to LID formation from counting towards the threshold needed to stop the formation of an LID to fund future public improvements. It is relevant to note, that this does not mean that the owner couldn’t testify against the formation of an LID at a public hearing, nor does it limit the right of the owner to contest, in the manner provided by law, the formula or method by which costs are allocated to benefiffed properties. —

If the 8.30 acre parcel Central Lincoln PUD is creating with this replat is redeveloped than it is possible that an LID will be needed to fund further improvements to SE Ash Street. It is at that time that rough proportionality findings would be required... not with the approval of this minor replat. The City met with the potential buyer and has more narrowly tailored the language in the non-remonstrance agreement so that it is clear that it will only apply to street, sidewalk, and public utilities along the property’s SW Ash Street frontage, in conjunction with development or redevelopment of the property (Exhibit 4). It is our hope that these changes will address their concerns, and those of the appellant. If not, the Commission may want to ask the appellant what their unresolved concerns are, as it has some flexibility in how a nonremonstrance agreement is structured; whereas, it cannot elect to not apply a criterion in the Municipal Code that is plainly required. Appellant’s second argument relates to ORS 92.046(1), which outlines aspects of a local government’s authority to regulate land divisions. There is nothing in that provision of the statute that would prohibit a local government from requiring a non-remonstrance agreement as a condition of approving a replat. Further, the Oregon courts have confirmed local government authority to require non-remonstrance agreements in this manner. See Larsson v. City of Lake Oswego, 26 Or LUBA 515 (1994). Appellant’s third argument relates to the fact that the City did not prepare “rough proportionality” findings. As noted above, a non-remonstrance agreement is not an exaction requiring these findings. City Attorney, Steve Rich, will be attending the appeal hearing and will be available to answer questions from Commission members. If, after taking testimony, the Commission has additional questions before rendering a final decision then it may elect to leave the record open for a specified period of time so that those questions may be answered. If, on the other hand, the Commission believes it has sufficient information to render a decision then a motion should be made outlining the nature of the decision with direction to staff or the appellant to prepare the findings and final order for consideration and possible adoption at its next regular meeting. Exhibits Exhibit 1: Exhibit 2: Exhibit 3: Exhibit 4:

Draft survey of the proposed replat, dated January 2018 Comprehensive Plan Functional Classification Map and Street Design Standards Appellant’s grounds for appeal, including a copy of the Director’s decision Current draft of the proposed non-remonstrance agreement

Page 2 of 2

ExhibitExhibit 1 3 File No. 1-MRP-17-A File 1-MRP-17-A

Exhibit 2 File No. 1-MRP-17-A Figure 3: Functional Classification of Roadways



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Exhibit 3 File No. 1-MRP-17-A

Macpherson, Gintner & Diaz LAWYERS 423 North Coast Highway P.O. Box 1270 Newport, Oregon 97365 (541) 265-8881 ($00) 829-8881 FAX (541) 265-3571

email: [email protected]

January 31, 201$ Mr. Derrick I. Tokos, Director City of Newport Community Development Department 169 SW Coast Highway Newport, OR 97365 Re:

Appeal of Minor Replat # 1-MRP-17 Tax Map 11-11-17-DC, Tax Lot 700 (3807 SE Ash St.)

Dear Mr. Tokos: This office represents Central Lincoln People’s Utility District (“Central Lincoln”) in the abovereferenced mailer. Central Lincoln requests a de novo appeal hearing before the Planning Commission. Please find the enclosed required form and filing fee in the amount of $250.00, which have been attached as Exhibit “1 “

A.

Challenged Decision

More specifically, Central Lincoln challenges condition of approval 3 (“Condition 3”) from the January 17, 2017 final Order of Director Derrick I. Tokos (“Director”). This condition was issued in response to an application for a Minor Replat (file # 1-MRP-17). A copy of the challenged final Order, to include its findings of Fact, have been attached as Exhibit “2.” B.

Standing

Central Lincoln has standing for this appeal because they were the applicant for the replat, and made an “appearance of record.” This appeal is timely, as per the February 1, 201$ deadline provided in the Community Development Departmenfs letter of January 1$, 201$. C.

Subject Property

The subject property is 3807 SE Ash Street, more particularly described as Tax Lot 700, Map 1111-17-DC. Central Lincoln wishes to reconfigure Lot 3 and a portion of Lots 2 and 4, Block M, Harborton Subdivision, to separate an existing utility substation from the balance of the former Central Lincoln People’s Utility District maintenance facility.

II Notice of Appeal: 1 of 2

D.

Grounds for Appeal

Central Lincoln appeals the imposition of Condition 3 on the following bases: 1.

There is no “essential nexus” between the replat and Condition 3. As admitted by the Director within the final Order, the concerns to be addressed from Condition 3 have not arisen, and will not occur unless and until further and later developments occur. According to the department’s own Findings of Fact “[t]he replat, by itself, does not generate a need for the public improvement...” Therefore, Condition 3 has not been demonstrated to be “roughly proportionate” and could never be thought to be roughly proportionate to the replat’s impacts on public infrastructure. Condition 3 amounts to an unconstitutional taking of private property without just compensation under the Fifth Amendment of the US Constitution. Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586 (2013).

2.

NMC 13.05.095 A4, as applied, exceeds the limitations of ORS 92.046(1). When a replat is considered, the Oregon Legislature has placed limitations on the ordinances a local authority may establish. As applied, this section of the Newport Municipal Code exceeds those limits.

3.

The failure to demonstrate rough proportionality also violates NMC 14.44.040’s requirement that conditions of approval be “roughly proportional to the impact of development on public facilities.”

4.

The Director has also failed to demonstrate that Condition 3 is “reasonable,” as required byNMC 14.52.120.

The positions of Central Lincoln are more fully set forth in the attached and incorporated memorandum at Exhibit “3.” As evidenced by its conduct regarding improvements to NE Avery Street for its new operations center, Central Lincoln is committed to being a responsible community member regarding its own developments. However, Central Lincoln feels it is not proper to be hit with such substantial conditions twice in the same relocation. This is especially true considering Central Lincoln intends no new developments at the subject property. Please confirm the receipt of these materials, as well as the date of the appeal hearing before the Newport Planning Commission. Please include this office on any official communications in this matter. If you have any questions or comments, feel free to contact me directly. Sincerely, /5, Ca-i’z4 PaU4-tOre’ of Attorneys for Central Lincoln cc:

Steve Rich Mark freeman Planning Commission

Notice of Appeal: 2 of 2

BEFORE THE COMMUNITY DEVELOPMENT (PLANNING) DIRECTOR OF THE CITY OF NEWPORT, COUNTY OF LINCOLN, STATE OF OREGON

IN THE MATTER OF PLANNING FILE NO. 1-MRP-17, APPLICATION FOR TENTATIVE PLAN APPROVAL OF A MINOR REPLAT, AS SUBMITTED BY CENTRAL LINCOLN PEOPLE’S UTILITY DISTRICT (MARK FREEMAN, AUTHORIZED REPRESENTATWE)

) ) ) ) )

FINAL ORDER

ORDER APPROVING A TENTATIVE PLAN for a proposed minor replat per Section 13.05.095 of the Newport Municipal Code (NMC) to reconfigure Lot 3 and a portion of Lots 2 and 4, Block M, Harborton Subdivision, to separate an existing utility substation from the balance of the former Central Lincoln People’s Utility District Maintenance facility. The substation will be situated upon a 1.43 acre parcel and the balance of the property will be configured as an 8.29 acre parcel, as illustrated in Exhibit “B”. WHEREAS: 1.)

The City ofNewport Community Development (Planning) Director has duly accepted the application filed consistent with the Newport Land Division standards codified as part of the Newport Municipal Code in Chapter 13; and

2.)

The Community Development (Planning) Director has duly reviewed the request and has given proper and timely notice to affected property owners; and

3.)

The Community Development (Planning) Director allowed the submission of evidence and recommendations from interested persons, Planning Department staff, other City departments, State agencies, and/or local utilities; and

4.)

At the conclusion of said review, after consideration, the Newport Community Development (Planning) Director approved the request for a proposed minor replat.

THEREFORE, LET IT BE RESOLVED by the City of Newport Community Development (Planning) Director that the attached findings of fact, Exhibit “A,” support approval of the request for the tentative plan for a proposed minor replat as illustrated in Exhibit “B.” BASED UPON THE ABOVE, the Newport Community Development (Planning) Director or designate determines that the request for the tentative plan for a minor replat is in conformance with the provisions of the Comprehensive Plan and the Municipal Code ofthe City ofNewport, subject to the following conditions: 1. The surveyor shall adjust the north line of proposed Parcel 1 such that it aligns with the legal description for that portion of Lot 2, Block M, Harborton listed in Book 180, at Page 440 of the Lincoln County Deed Records and illustrated with Survey Record No. 15071 or provide a narrative, in a format acceptable to the County Surveyor’s Office, explaining why the discrepancy is appropriate. Such narrative shall be included on the final plat, if acceptable to the County Surveyor. Page 1. FINAL ORDER: Minor Replat No. 1-MRP-IVCentral Lincoln

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2. The northernmost utility easements should be consolidated, if possible, and language added identifying the beneficiaries of each of the proposed easements. further, existing easements that encumber the property are to be depicted with reference to the recorded documents. 3. The property owner shall sign and record a Land Improvement Waiver of Remonstrance Agreement related to future widening and improvement of SW Ash Street prior to approval of the final plat. Accepted and approved this

17th

day of January, 2018.

Derrick I. Tokos, MCP Community Development Director City of Newport

Attest:

Sherri Marineau Executive Assistant

Page 2. FINAL ORDER Minor Replat No. I-MRP-17/Central Lincoln

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EXifiEIT “A” Case File No. 1-MRP-17 FINDINGS Of FACT 1. Per Section 13.05.095 of the Newport Municipal Code (NMC), this application involves a minor replat of Lot 3 and a portion of Lots 2 and 4, Block M, Harborton, to separate an existing utility substation from the balance of the former Central Lincoln People’s Utility District Maintenance facility. The substation will be situated upon a 1.43 acre parcel and the balance of the property will be configured as an 8.29 acre parcel (ref: tentative plan, dated January 16, 2018 (Exhibit “B”)). 2. The applicant and owner is the Central Lincoln People’s Utility District (PUD). The applicant’s representative is Mark Freeman, Director of Employee, Customer and Community Services, Central Lincoln PUT), P.O. Box 1126 Newport, OR 97365. 3. The application for tentative plan approval of the proposed replat was submitted on December 8, 2017. A copy of the complete application is included in the file and is incorporated by reference into the fmdings. 4. The subject property is identified as Tax Lot 700 of Lincoln County Assessor’s Tax Map 11-1 1-17-DC (Lot 3 and portions of Lots 2 and 4, Block M, Harborton Subdivision). 5. The Comprehensive Plan designation for the subject property is “Industrial” and the zoning designation is I-1/”Light IndustriaL” 6. Notice of the proposed replat was mailed on December 11, 2017 to property owners within 100 feet per Section 13.05.095(A) of the Municipal Code, and to various City departments, agencies, and public utilities. The notice contained the criteria by which the application was to be assessed. Affected parties were given until 5:00 p.m., December 26, 2017, in which to make comment on the application. Email correspondence was received from Olaf Sweetman, Assistance City Engineer, with the Newport Public Works Department related to the adequacy of utility easements. No other comments were provided on the application. 7. Section 13.05 .095 of the Newport Municipal Code contains the criteria for approval of a tentative plan for a replat. Those criteria are as follows: (a) (b)

The tentative plan complies with the definition of a replat. All lots within the tentative plan meet the requirements for configuring lots and or parcels listed under Section 13.05.030 or, if the original lots or parcels were nonconforming, the resultant lots or parcels will be less nonconforming.

(c)

Approval of the tentative plan does not interfere with the provision of key public facilities.

(d)

The applicant has agreed to sign consent to participate in sewer, water, or street local improvement districts that the subject lots would be part of once those districts are

I. EXHIBIT A FINDINGS OF FACT: MINOR REPLAT No. I-MRP-17/Central Lincoln.

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formed. Said consent shall be a separate document recorded upon the lots subject to the partition. The document shall be recorded prior to fmal plat approval. (e)

Public facilities serving the minor replat are adequate under Section 13.05.045. Proposed streets within the minor replat comply with the standards under Section 13.05.015, including any allowed modification, or a variance has been obtained.

(f)

All required public improvements will be provided.

(g)

Any required geologic hazard report concludes that the property can be developed in the manner proposed. CONCLUSIONS

1. With regard to the criteria in Section 13.05.095 of the Newport Municipal Code for approving a tentative plan for a replat, the following conclusions can be drawn: (a)

The tentative plan complies with the definition ofa replat.

Pursuant to Section 13.05.0051’Definitions” a replat is defined as: “The act of platting the lots, parcels and easements in a recorded subdivision or partition plat to achieve a reconfiguration of the existing subdivision or partition plat or to increase or decrease the number of lots in the subdivision. A replat shall not serve to vacate a public street or road.” The applicant’s proposal complies with the definition of a replat in that it involves the reconfiguration of platted lots within a recorded subdivision identified as Tax Lot 700 of Lincoln County Assessor’s Tax Map 11-1 1-17-DC (Lot 3 and portions of Lots 2 and 4, Block M, Harborton Subdivision). No streets or roads are being vacated by this application. The angled, southeast corner of Lot 4, Block M, Harborton was placed into its present configuration following a property line adjustment with a parcel to the south. That adjustment was approved by the City of Newport (File No. 9-PLA-97). A 13,547 square foot portion of Lot 2, Block M, Harborton was conveyed to Central Lincoln PUIJ at some point in the past. It is immediately adjacent to the north line of Lot 3, Block M, Harborton and is illustrated with Lincoln County Survey Record No. 15071. A legal description for this portion of Lot 2 is included in the deed for the property recorded in Book 180, at Page 440 ofthe Lincoln County Deed Records. The north line of proposed Parcel 1 has been drawn such that it appears to include this strip of land; however, the dimensions depicted on the tentative plan, prepared by Tom Hamilton Surveying, amended January 16, 2018, do not align with those included in the legal description and shown on Survey Record No. 15071. If this is an error, then it needs to be corrected on the final plat. If, on the other hand, there are issues with monumentation or other reasons why the dimensions depicted on the proposed partition must deviate from those contained in the legal description, then the surveyor needs to prepare an explanation, preferably as a survey narrative, in a format acceptable to the County Surveyor’s Office so that there is a record describing why the legal description in the deed and the boundary on the plat are different. This criterion is met with a condition of approval. 2 EXHIBIT A FU’ID[NGS OF FACT: MTNOR REPLAT No. I-MRP-17/Central Lincoln.

EXHIBIT

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(b)

All lots within the tentative plan meet the requirements for configuring lots and or parcels listed under Section 13.05.030 or, f the original lots or parcels were nonconforming, the resultant lots or parcels will be less nonconforming;

Section 13.05.030 requires that the resulting lots satisfy, or be less nonconforming to, the minimum lot size of the zone district; possess at least 25 feet of street frontage other than an alley; will not become “through lots” (i.e. lots with frontage on two parallel streets); have side lines that run at right angles to the street upon which they face; are large enough to accommodate any required special setbacks; are no larger than 175% of the required minimum lot size ofthe zone (unless terrain or other conditions restrict further development potential); and do not contain wetlands or similar development constraints on more than 50% of the land area. The zoning for the property is I-li “Light Industrial.” The minimum lot size of the 1-1 district is 5,000 square feet. According to the applicant’s tentative plan, the replat will result in two parcels, one of which will be 8.29 acres in size and the other 1.43 acres in size. The applicant’s tentative plan illustrates that the resulting lots will each possess more than 25-feet of street frontage along SE 40th Street and SE Ash Street, that neither is a through lot, and that the side lines run at right angles to the abutting streets. Typically, parcels are prohibited from being larger than 175% of the required minimum lot size of the zone. Exceptions are allowed if terrain or other conditions prohibit a further division of the property. In this case, there are other conditions that warrant the properties being sized as presented on the tentative plan. Parcels 1 and 2 have been sized to accommodate an existing substation and complex of industrial buildings that were formerly a part of Central Lincoln PUD’s maintenance operations. A further division of the properties would be difficult to achieve short of requiring buildings to be removed, which would be expensive and impractical. Industrial properties are also needed in various sizes, and given that there are relatively few industrial sites in the City of Newport larger than 8 acres, it is likely to be desirable for certain end users. The City of Newport’s Local Wetland Inventory does not identify wetlands on the property nor does there appear to be other development constraints that would encumber more than 50% of the lots. Considering the above, this criterion has been satisfied. (c)

Approval ofthe tentative plan does not interfere with the provision ofkey public facilities.

Key public facilities include public street, water, and sewer and storm drainage services. The rights-of-way for SE Ash Street and SE 40th Street contain paved public streets, public water mains and gravity sewer lines that are sized such that they are capable of serving the resulting lots. A storm drainage collection system extends through the north end of proposed Parcel 1 in an east/west alignment within what is shown on the tentative plan as a 20-foot storm drainage easement and a 30 foot-utility, drainage, and ingress egress easement. A storm drainage line also cuts across the southwest corner of proposed Parcel 1 within a proposed 20-foot storm drainage easement. The storm drainage system serves the proposed parcels and adjoining properties and the tentative plan illustrates that the applicant is prepared to contain them in appropriate easements so that they can be adequately maintained. The northernmost utility easements are configured such that they can be combined, and language is needed clarifying who the beneficiaries are of the proposed easements. Additionally, the applicant’s title report indicates that there are existing easements that encumber the

3. EXHIBIT “A’ FDINGS Of FACT: MOR REPLAT No. )-MRP-17/Ccntral Uncoin.

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property, namely overhead utility lines to the benefit of Central Lincoln PU]) (Book 307, Page 1483) and Verizon Wireless (Instrument #2014-11138). These should be depicted as existing with reference to the recorded documents (NMC 13.05.070(C)(6)). Changes needed to the easements, described herein, are largely for clarification and can be addressed with the final plat. The public facilities are in place, and the replat will not necessitate that they be relocated or otherwise interfere with the provision of the services. The City’s capital facility plans do not show any future services that would be adversely impacted by this replat. This criterion is satisfied. (d)

The applicant has agreed to sign consent to participate in sewer, water, or street local improvement districts that the subject lots would be part ofonce those districts are formed. Said consent shall be a separate document recorded upon the lots subject to the partition. The document shall be recordedprior tofinaiplat approval.

The Newport Transportation System Plan identifies SW Ash Street as a collector roadway, with a minimum right-of-way width of 60-feet. The existing right-of-way is substandard at 40-feet, and the road is narrower than the 40-feet of pavement width typical of a collector (i.e. two 12-ft travel lanes, with on-street parking). The roadway may need to be widened if proposed Parcel 1 is redeveloped. The replat, by itself, does not generate a need for the public improvement; therefore, a non-remonstrance agreement committing the owner to participate in future improvements ,if and when they are needed, is adequate and consistent with this code requirement. As conditioned, this criterion has been met. (e)

Public facilities serving the minor replat are adequate under Section 13.05.045. Proposed streets within the minor replat comply with the standards under Section 13.05.015, including any allowed modtfication, or a variance has been obtained.

Section 13.05.045 sets out that tentative plans for land divisions shall be approved only if public facilities and utilities (electric and phone) can be provided to adequately service the new parcels. As noted, city street, water, sewer and storm drainage services are in place and available to the parcels. Letters from Central Lincoln PUD, Charter, and Pioneer Telephone Cooperative were provided indicating that they can provide service to the parcels. This standard has been met. (f)

All required public improvements will be provided.

There are no public improvements needed to serve the proposed lots as they are currently developed. Future redevelopment of Parcel 1 may necessitate improvements to SW Ash Street, which is addressed via the requirement that a non-remonstrance agreement signed and recorded. This criterion is satisfied. (g)

Any required submitted geological hazard report concludes that the property can be developed in the manner proposed, in accordance with any recommendations contained in the report.

The parcels are outside of a Geologic Hazards Area as defined in the Newport Zoning Ordinance (NMC Chapter 14.21). Therefore, no report is required.

4. EXHIHIT A FDGS OF FACT: MOR REPT No. t-M-l7ICentml Lincoln,

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OVERALL CONCLUSION The request complies with the criteria established for the approval of a tentative plan for a minor replat and is hereby APPROVED, subject to the following conditions: 1. The surveyor shall adjust the north line of proposed Parcel 1 such that it aligns with the legal description for that portion of Lot 2, Block M, Harborton listed in Book 180, at Page 440 of the Lincoln County Deed Records and illustrated with Survey Record No. 15071 or provide a narrative, in a format acceptable to the County Surveyor’s Office, explaining why the discrepancy is appropriate. Such narrative shall be included on the final plat, if acceptable to the County Surveyor. 2. The northernmost utility easements should be consolidated, if possible, and language added identifying the beneficiaries of each of the proposed easements. Further, existing easements that encumber the property are to be depicted with reference to the recorded documents. 3. The property owner shall sign and record a Land Improvement Waiver of Remonstrance Agreement related to future widening and improvement of SW Ash Street prior to approval of the final plat.

5. EXHIBiT A FINDINGS OF FACT: MINOR REPLAT No. I-MRP-i7ICenir1 Lrncoln.

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Memorandum in Support

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Appeal of final Order

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Matter of Planning File No. 1-MRP-17

7

Application for Tentative Plan Approval of a Minor Replat,

8

as Submitted by Central Lincoln People’s Utility District,

9

as Approved by final Order Dated January 17, 2018.

10 11

Comes the applicant, Central Lincoln People’s Utility District (“Central Lincoln”), by

12

and through counsel, and submits this memorandum of law and authorities in support of its

13

appeal of the Final Order of the Community Development Director (“Director”) dated January

14

17, 2018 regarding File No. 1-MRP-17 (“Final Order”).

15

A.

Standing

16

A person with standing may appeal a decision of the approving authority within 15

17

calendar days after the date the final order is signed. NMC 14.52.100. To have standing one must

18

have made an “appearance of record,” defined as either appearance in person or in writing.

19

Central Lincoln, as applicant in this matter, has standing in this matter. further, Central Lincoln

20

has standing because its right to property is directly effected by the Director’s final Order. This

21

appeal was timely filed on January 31, 2018, based upon the deadline of February 1, 2018, as

22

established by the Community Development Department in its January 18, 2018 letter.

.

Memorandum in Support: 1 of 11 Macpherson, Gintner & Diaz 423 North Coast Hwy, P0 Box 1270, Newport, Oregon 97365 (541) 265-8881 Fax (541) 265-3571

EXHIBIT

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PAGE

1

B.

Central Lincoln has requested a de novo review before the Planning Commission.

2 3 4

Standard of Review

C.

Summary of Facts

Central Lincoln submitted its application for tentative plan approval for a proposed Minor

5

Replat of Lot 3 and a portion of Lots 2 and 4, Block M, Harborton, to separate an existing utility

6

substation from the balance of the former Central Lincoln operations center. The substation will

7

be situated on 1.43 acres of land with the balance being configured as an 8.29 acre parcel, which

$

istobe sold.

9

Director returned his final Order of approval with conditions on January 17, 2018.

10

Within that order was a condition to “sign and record a Land Improvement Waiver of

11

Remonstrance Agreement” (“Condition 3”). final Order, No. 1-MRP-17, pg 2 (Jan. 17, 2012).

12

More specifically:

13 14 15

16 17 18

(U) The applicant has agreed to sign consent to participate in sewer, water, or street local improvement districts that the subject lots would be part of once those districts are formed. Said consent shall be a separate document recorded upon the lots subject to the partition. The document shall be recorded prior to final plat approval. The Newport Transportation System Plan identifies SW Ash Street as a collector roadway, with a minimum right-of-way width ofCO-feet. The existing right-of-way is substandard at 40-feet, and the road is narrower than the 40-feet of pavement width typical of a collector (i.e. two 12-fl travel lanes, with on-street parking). The roadway may need to be widened if proposed Parcel us redeveloped. The replat, by itself, does not generate a need for the public improvement; therefore, a non-remonstrance agreement committing the owner to participate in future improvements, if and when they are needed, is adequate and consistent with this code requirement. As conditioned, this criterion has been met.

19

findings of fact, File No. 1-MRP-17, pg. 4 (Jan. 17, 2012). Central Lincoln timely filed this

20

appeal on January 31, 2018, requesting de novo review of the final Order.

21

Central Lincoln risks losing its current buyer due to contractual obligations regarding the

22

land sale. Central Lincoln is currently bound by a land sale contract which requires the property Memorandum in Support: 2 of 11 Macpherson, Gintner & Diaz 423 North Coast Uwy, P0 Box 1270, Newport, Oregon 97365 (541) 265-8881 Fax (541) 265-3571

-,

H[BIT

\

PAGELO_t

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be sold in its current condition. That buyer is local and has shown an interest in working with the

2

city to re-develop the area. If allowed to remain, Condition 3 will hurt development in the area

3

by disincentivizing otherwise interested buyers who do not wish to buy a parcel encumbered in

4

this way. Longer periods of vacancy resulting from this imposition will logically delay payment

5

of property taxes. This will in-turn delay the city’s ability to recognize any new development of

6

the area. Condition 3, as imposed, amounts to a “blank check” which will work against

7

development in the area.

$

D.

Summary of Argument

9

Decisions of the Supreme Court of the United States of America (“SCOTUS”), as well as

10

decisions in various Oregon courts, state clearly that Condition 3 cannot be imposed. Condition 3

11

has been imposed with an eye to future development of the area “[t]he roadway may need to be

12

widened if proposed Parcel 11$ redeveloped. The replat, by itself, does not generate a need for

13

the public improvement.” Findings of fact, File No. 1-MRP-17, pg. 4 (January 17, 2018).

14

Central Lincoln has not applied for further development of proposed Parcel 1, and the Director

15

has already recognized that the need addressed by Condition 3 does not arise from this Minor

16

Replat.

17

SCOTUS made clear in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1927), that

12

there must be an “essential nexus” between the condition imposed and the development.

19

Therefore, Director may not impose a condition based on a future development because there is

20

no essential nexus between this Minor Replat and that, yet unknown, substantial future

21

development. Similarly, SCOTUS made clear in Dolan v. City of Tigard, 512 U.S. 374 (1994),

22

that a condition to development must be “roughly proportionate” to the impacts of that Memorandum in Support: 3 of 11 Macpherson, Gintner & Diaz 423 North Coast Hwy, P0 Box 1270, Newport, Oregon 97365 (541) 265-8881 Fax (541) 265-3571

PAGES

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1

development. In this instance, the Director has imposed a condition that could be roughly

2

proportionate to some later development. However it is not proportionate to the Minor Replat,

3

and at any rate, that later development has yet to even produce the details that would be required

4

for the Director to find rough proportionality. Conclusory determinations are not enough. Dolan,

5

512 U.S. at 396. Condition 3 is an exaction that violates the Fifth Amendment rights of Central

6

Lincoln. Where a rule making authority has been given a limited power to create rules, acting

7 8

outside that power is Ultra Vires. See West Linn Corp Park, LLC v. City of West Linn, 349 Or.

9

58, 96 (2010). ORS 92.046 provides the exclusive, and limited, scope of authority for the

10

Director in conditioning a Minor Replat, and he has exceeded the same by his final Order.

11

Further, his determination is both arbitrary and not based on substantial evidence. Again, the

12

details of the referenced later development have not occurred. Any determination on conditions

13

for that future development would be arbitrary and adequate findings of fact would be

14

impossible. For all these reasons, Director has also violated sections of the Newport Municipal Code

15 16

(“NMC”) which require rough proportionality and reasonableness in placing conditions on the

17

Minor Replat of Central Lincoln.

18 19

20 21 22

II Memorandum in Support: 4 of U Macplierson, Gintner & Diaz 423 North Coast Hwy, P0 Box 1270, Newport, Oregon 97365 (541) 265-8881 Fax (541) 265-3571 ‘

PAGE1

1(

1

E.

Argument 1.

2

The Director’s decision violates the Fifth Amendment property rights of

3

Central Lincoln. The Director’s decision has neither the required

4

“essential nexus,” nor is it “roughly proportional” to its impact.

5

SCOTUS has described their decisions in Nollan and Dolan as providing:

6

...an important protection against the misuse of the power of land-use regulation. In those cases, we held that a unit of government may not condition the approval of a land-use permit on the owner’s relinquishment of a portion of his property unless there is a “nexus” and “rough

$ proportionality” between the government’s demand and the effects of the proposed land use.

9 10

Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2591 (2013). In the conclusion of

11

that opinion, the Court held that these limitations applied even to demands for money that did not

12

require a dedication of lands. j4. at 2590. To have an essential nexus, the condition must advance the same interests that would

13 14

support a denial. Lingle v. Chevron USA Inc., 544 U.S. 528, 547-8 (2005). To be roughly

15

proportionate “[n]o precise mathematical calculation is required, but the city must make some

16

sort of individualized determination that the required dedication is related both in nature and

17

extent to the proposed development’s impact.” Dolan, 512 U.S. at 391. To be roughly

18

proportionate, the impact supporting an exaction must arise from the development for which the

19

permit is being sought, not a later development. Schultz v. City of Grants Pass, 131 Or. App. 220,

20

(1994).

21

In Schultz, a city attempted to impose conditions warranted not due to the partition

22

application that had been filed, but for impacts that would be created by a later development. The Memorandum in Support: 5 of 11 Macpherson, Gintner & Diaz 423 North Coast Hwy. P0 Box 1270, Newport, Oregon 97365 (541) 265-8881 Fax (541) 265-3571

C EXHIBIT__

PAGE_

1

Court of Appeals for the State of Oregon held that conditions cannot be based upon the impact of

2

speculative future developments that would also require an application.

3

Oregon have similarly limited the ability of cities to demand consent agreements for future

4

improvements. Deal v. City of Hermiston, LUBANo. 97-238 (Or. LUBA. 1998).

.

at 229. Courts in

The imposition of Condition 3 is nearly identical to the exaction held in Schultz to be

5 6

unconstitutional. In both cases, the impact the condition addressed would not occur until a later

7

development. In both cases, such developments would require their own application. The oniy

8

meaningful difference between the cases is that Schultz required a dedication of land where

9

Central Lincoln is being forced to sign a waiver with definite, but yet-unknown, monetary

10

consequences. The Supreme Court’s opinion in Koontz, as well as LUBA’s ruling in i, speak

11

directly to this difference, reaching the same outcome for different reasons. This delayed demand

12

for money, based upon a yet-unknown future development with currently unascertainable

13

impacts, is a direct violation of Schultz, as well as Nollan, Dolan, Koontz. and their progeny.

14

Additionally, returning to Dolan, an individualized determination in this instance is

15

impossible. The future development and its impacts are yet unknown. Cities have a constitutional

16

duty to conduct this individualized determination, and in this case, not only has the city failed to

17

accomplish this but, indeed, such an act is not even possible. The Director may have concluded

18

sufficiency, but conclusory and unqualified statements are not enough. Dolan, 512 U.S. at 396.

19

And because the regulations imposed cannot deny this application, and are actually related to a

20

later development, there is no essential nexus between Condition 3 and the application of Central

21

Lincoln.

22

II Memorandum in Support: 6 of 11 Macpherson, Gintner & Diaz 423 North Coast Hwy, P0 Box 1270, Newport, Oregon 97365 (541) 265-8881 Fax (541) 265-3571

.

HIBIT

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PAGEL

LII

As applied, NMC 13.05.095 A4 exceeds the limitations of ORS 92.046(1)

1

2.

2

A condition to approval of a Minor Replat is found at NMC 13.05.095 A4:

3

(d) The applicant has agreed to sign consent to participate in sewer, water, or street local improvement districts that the subject lots would be part of once those districts are formed. Said consent shall be a separate document recorded upon the lots subject to the partition. The document shall be recorded prior to final plat approval.

4

5 6

The Oregon statute granting authority to a city to create such rules appears at Qi 92.046. That

7

statute contains a couple of unique provisions. F irst, the grant of rule making authority is

$

qualified by the words “when reasonably necessary to accomplish the orderly development of the

9

land within the jurisdiction of such a county or city...” J.i. at (1). Second, that grant of power also

10 11 12

contains a unique limitation: .standards may include all, or tess than all, of the same requirements as are provided or authorized for subdivisions under ORS 92.0 10 to 92.192 and may provide for different standards and procedures for different classifications of such partitions so long as the standards are no more stringent than are imposed by the city or county in connection with subdivisions. .

.

13

Id. (Emphasis Added). The meaning of this statute is clear: if a city cannot find a condition

14

within the language of ORS 92.0 10— ORS 92.192, the city may not create that ordinance nor

15

impose that condition.

16

No provision of ORS 92.010



ORS 92.192 speaks to the power of a local authority to

17

require consents for future maintenance to water, sewer, or street improvements unrelated to the

18

specific development at-hand. The closest provisions appear at ORS 92.044(1)(b) (A) & (E):

19

20 21 22

(b) The standards shall include, taking into consideration the location and surrounding area of the proposed subdivisions or partitions, requirements for: (A) Placement of utilities subject to subsection (7) of this section, for the width and location of streets or for minimum lot sizes and other requirements the governing body considers necessary for lessening congestion in the streets; (E) Facilitating adequate provision of transportation, water supply. sewerage, drainage, education, recreation or other needs; and Memorandum in Support: 7 of 11 Macpherson, Gintner & Diaz 423 North Coast Hwy, P0 Box 1270, Newport, Oregon 97365 (541) 265-8881 Fax (541) 265-3571

EXHIBIT )

PAGE_______

1

Both of these conditions speak to the ability of a local authority to consider the impacts to streets

2

and utilities a development may have, but, neither speak to imposing conditions for future

3

maintenance that might occur afier that development is already in place.

4

An act of a city or other governmental entity is ultra vires when that act falls outside the

5

entity’s corporate powers. Keeney v. City of Salem, 150 Or. 667, 669-71 (1935). When a

6

governmental entity’s power is conferred by statute, actions outside the scope of that power are

7

“extra statutory” and therefore ultra vires. See. e.g., State v. United States F. & G. Co. et a!., 125

8

Or. 13, 24-25 (1928) (so applying to the context of state highway commission). Where a statute

9

expressly provides that the authority granted is not exclusive, it has been held that failure to

10

conform to limitations or procedures does not necessarily render an action ultra vires. West Linn

11

Corp Park. LLC v. City of West Linn, 349 Or. 58, 97 (2010).

12

This is not a situation where a local authority has been given broad discretion, ORS

13

92.046 places considerable limits on the powers of a city. First, conditions for a replat may only

14

be imposed “when reasonably necessary to accomplish the orderly development of the land.”

15

Second, rather that being given the power to do all things necessary or reasonable in using these

16

powers, the Oregon Legislature has placed walls around ORS 92.101

17

certain a local authority does not impose anything beyond the scope of those statutes. Local

18

Improvement Districts do not appear within and are found at ORS Chapter 223. Unlike West

19

Linn, the statute in this matter (ORS 92.046) makes clear that the conditions imposed by a local

20

authority are exclusively confined to ORS 92.0 10— ORS 92.192.

21 22



ORS 92.192 to make

Thus, to require Condition 3 is ultra vires. The power of the Director to act comes from a statute which limits the scope of his action and this action clearly falls outside of that scope. Memorandum in Support: 8 of ii Macpherson, Gintner & Diaz 423 North Coast Hwy. P0 Box 1270, Newport, Oregon 97365 (541) 265-8881 Fax (541) 265-3571

EXHIBIT__‘

PAGE’

1

There is nothing within ORS 92.101

2

non-remonstrance agreement, nor is there anything within the same that speaks to an ability to

3

demand conditions related to future developments, nor (in light of Nollan, Dolan, and Koontz)

4

could the ORS be read that way without running afoul of the Supremacy Clause of the United

5

States Constitution.

6



92.192 that contemplates forcing an applicant to sign a

Further, Condition 3 is arbitrary and unsupported by substantial evidence. No traffic

7

analysis has been conducted and no traffic impact letter submitted. The record lacks any

8

substantial evidence that Condition 3 is necessary or will address the impacts of a currently

9

unknown future development. Conditions to a development may not be imposed unless they are

10

supported by substantial evidence. See Deal, 97-23 8 at 9-10.

11

In a very similar previous matter before the Director, when utilities and streets were

12

likewise already in place when a Minor Replat for partition was applied for, the Director said that

13

the criterion found at NMC 13.05.095 A4 “does not apply.”:

14

15 16

(d)

The applicant has agreed to sign consent to participate in sewer, water, or Street local improvement districts that the subject lots would be part of once those districts are formed. Said consent shall be a separate document recorded upon the lots subject to the partition. The doctiment shall be recorded prior to final plat approval.

The subject property is located in an existing subdivision that has water, sewer, street, and sidewalk improvements in place. Therefore, this criterion does not apply.

17 18

Findings of Fact, File No. 2-MRP-14, pg. 6 (December 16, 2014). If this criterion “does not

19

apply” where water, sewer, street, and sidewalk improvements are already in place, then it should

20

not apply in this matter, where “[a]s noted, city street, water, sewer and storm drainage services

21

are in place and available to the parcels.” Findings of Fact, File No. 1-MRP-17 at 4. Central

22

Lincoln should be entitled to conclusions that are consistent with previous findings of the Memorandum in Support: 9 of 11 Macpherson, Gintner & Diaz 423 North Coast Hwy, P0 Box 1270, Newport, Oregon 97365 (541) 265-8881 Fax (541) 265-3571

EXHIBIT

PAGE1

tI

1

Director. To require Condition 3, where no condition was found to be warranted under such

2

similar circumstances, is arbitrary. It is even more arbitrary in light of the fact that the Director

3

has said “[tJhere are no public improvements needed to serve the proposed lots as they are

4

currently developed.” id. 3.

5

Director failed to demonstrate that Condition 3 is “roughly proportional to

6

the impact of the development on public facilities,” as required by NMC

7

14.44.040.

For the reasons already listed, above, Director has failed to demonstrate that Condition 3

8 9 10

is roughly proportional. Director has merely concluded, in conclusory fashion and without the necessary analysis, that Condition 3 was so. 4.

11

Director failed to demonstrate that Condition 3 is “reasonable,” as required

by NMC 14.52.120.

12

Similarly, and again as above, Director has failed to demonstrate that Condition 3 is

13 14

reasonable. Director has merely concluded, in conclusory fashion and without the necessary

15

analysis, that Condition 3 was so.

16

F.

17

Conclusion

In light of these authorities, Director may not impose Condition 3, or any other condition

18

that attempts to force Central Lincoln to pay for the impacts of later developments by other

19

applicants. The weight of SCOTUS decisions in this area, combined with Oregon opinions which

20

reinforce this conclusion, leave Central Lincoln in a position to feel that the Planning

21

Commission should be able to easily see that the Final Order of the Director violates the fifth

22

Amendment rights of Central Lincoln, runs counter to the decisions of mandatory authorities. Memorandum in Support: 10 of 11 Macpherson, Gintner & Diaz 423 North Coast Hwy, P0 Box 1270, Newport, Oregon 97365 (541)265-8881 Fax (541)265-3571

7 EXHIBIT_—

PAGEIUc’

1

runs counter to the limits of ORS 92.046, is arbitrary, not supported by sufficient evidence, and

2

can cannot be allowed to stand. The final Order works against the application checklist which

3

states applicants will “participate” in improvement districts. Condition 3 does not even allow for

4

Central Lincoln to “participate” beyond making payments. This process serves only the city, and

5

by avoiding any actual land owner participation in the creation of an improvement district

6

ultimately pits land owner against land owner in a contest over allocation of costs.

7

$ 9

DATEDth1s31 day ofJanuary. 2018.

10

V

Macpherson, Gintner & Diaz

11

12



Cam Passmore, OSB# 164549 423 North Coast Highway / P0 Box 1270 Newport, OR 97365 ph: (541) 265-8881 f: (541)265-3571 e: passmoremggdlaw.com Of Attorneys for Central Lincoln

13

14 15

16 17 18 19

20 21 22

Memorandum in Support: 11 of 11 Macpherson, Gintner & Diaz 423 North Coast Hwy, P0 Box 1270, Newport, Oregon 97365 (541) 265-8881 Fax (541) 265-3571

V

EXHIBIT_______ PAGE

I

Exhibit 4 File No. 1-MRP-17-A After recording please mail to: Community Development Department City of Newport 169 SW Coast Hwy Newport, OR 97365

LAND IMPROVEMENT WAIVER OF REMONSTRANCE THIS AGREEMENT, is between the City of Newport (“City”) and Central Lincoln People’s Utility District (“Owner”). RECITALS A.

Owner desires to replat the property that is currently identified as Lot 3, and portions of Lots 2 and 4 “BLOCK M, HARBORTON SUBDIVISION” by modifying lot dimensions in a platted subdivision thereby consolidating portions of three lots into two parcels as shown in the exhibit attached hereto. The property is legally described as: BEGINNING AT THE 1/4 CORNER BETWEEN SECTIONS 17 AND 20; THENCE S87◦16’28” EAST, 227.19 FEET; THENCE S87◦16’51” EAST, 469.84 FEET TO THE INITIAL POINT A 5/8” INCH IRON ROD; THENCE NORTH 00◦06’07” WEST, 650.72 FEET; THENCE NORTH 89◦00’19” EAST, 633.24 FEET; THENCE SOUTH 00◦45’20” EAST, 40.97 FEET; THENCE SOUTH 00◦11’56” EAST, 437.71 FEET; THENCE NORTH 87◦19’54” WEST, 300.98 FEET; THENCE SOUTH 00◦11’56” EAST, 212.94 FEET; THENCE NORTH 87◦16’43” WEST, 334.51 FEET TO THE INITIAL POINT.

The property described in this section will be referred to as the “Property.” B.

The Community Development Director’s Final Order of January 17, 2018, approving the tentative plan for the proposed minor replat in File No. 1-MRP-17 as requested by Owner included a condition that prior to final plat approval, the applicant shall sign and record consent to participate in any street local improvement districts that the subject parcels would be part of once those districts are formed. TERMS OF AGREEMENT

1. This Agreement is a covenant running with the Property and binding on Owner and Owner’s successors in interest. This Agreement affects the title to and the rights to possession of the Property. All of the terms, conditions, requirements, obligations and agreements in this document (the “requirements”) shall run with the land and shall be binding upon, and inure to the benefit of, Owners and their successors in interest, including all future owners of any portion of the Property. 2. Owner will participate in any local improvement district or districts formed for the purpose of constructing street, sidewalk, and public utilities along the Property’s SW Ash Street frontage, in conjunction with development or redevelopment of the Property. 3. The City Engineer may commence proceedings for a local improvement district or districts as authorized by Newport Municipal Code Chapter 12.05. 4. Owner’s execution of this agreement shall be equivalent to the submission of a petition to form a local improvement district and shall constitute a waiver of any right to remonstrate against the formation of the local improvement district. However, nothing herein contained is intended to limit the right of Owner to contest, in the manner provided by law, the formula or method by which such costs are allocated to benefited properties. Waiver of Remonstrance

1

DATED this

day of

, 20

.

CITY OF NEWPORT

OWNER(S)

By: Spencer Nebel City Manager

Debra Smith, General Manager Central Lincoln PUD

STATE OF OREGON County of Lincoln

) ) ss. )

This instrument was acknowledged before me on City Manager for the City of Newport.

, 20___ by Spencer Nebel, as

Notary Public – State of Oregon

STATE OF County of

) ) ss. )

This instrument was acknowledged before me on , 20___ by Debra Smith, General Manager, on behalf of Central Lincoln People’s Utility District., owner.

Notary Public – State of Oregon

Waiver of Remonstrance

2

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