Chapter 17.94
WAIVERS OF REGULATIONS
Sections:
17.94.040 Planning department report.
17.94.070 Notice of public hearing.
17.94.080 City council final decision – Appeal.
17.94.010 Purpose.
The purpose of this chapter is to establish a procedure for determining whether a property owner who was granted a waiver from land use regulations has a common law vested right to complete and continue the use described in the waiver. (Ord. 2008-02 § 1)
17.94.020 Definitions.
A. As used in this chapter, words and phrases shall have the same meaning as provided in Ballot Measure 49.
B. As used in this chapter, “planning director” means the city of Lincoln City planning and community development director or designee.
C. As used in this chapter, “waiver” or “Measure 37 waiver” refers to a waiver issued pursuant to a decision on a claim for compensation under Ballot Measure 37, codified at ORS 197.352 (2005) before the statute was amended by the adoption of Ballot Measure 49 (Chapter 424, Oregon Laws 2007), enacted by the voters on November 6, 2007. (Ord. 2008-02 § 1)
17.94.030 Application.
A. Any person who wishes to complete or continue any use of property allowed pursuant to a Measure 37 waiver shall file an application for a vested rights determination as required by Ballot Measure 49. Until the city council’s determination of vested rights has been made, no permits shall be issued, and, if the city of Lincoln City has issued permits, an order stopping work under those permits will be issued.
B. An application for a vested rights determination must be submitted to the planning department in the form prescribed by the planning director and signed by the owner. The complete application shall include the following information:
1. Name, address, telephone number and signature of the owner filing the application.
2. A copy of the conveyance document that shows the applicant’s interest in the real property and includes a legal description and physical address of the property.
3. A copy of the orders of city of Lincoln City and the state of Oregon approving a waiver for the property.
4. A copy of any land use approvals and construction permits issued that allow development of the property.
5. Identification of expenditures made to develop the property and the dates of those expenditures.
6. A written statement describing:
a. How the applicant’s use of the property is consistent with the waiver; and
b. How the applicant has a common law vested right to complete or continue the use described in the waiver.
7. An application fee to be established by separate resolution of the city council. (Ord. 2008-02 § 1)
17.94.040 Planning department report.
A. The planning director will prepare a staff report that describes the vested rights application, sets forth all pertinent facts, and makes a recommendation on how the application should be resolved.
B. The planning director’s report and recommendation shall be forwarded to the city council of Lincoln City for a public hearing. At any time, the planning director may refer a copy of the report and recommendation to the city of Lincoln City planning commission for comment; however, the planning commission is not required to review the matter or make a recommendation unless specifically requested to do so by the planning director or city council. (Ord. 2008-02 § 1)
17.94.050 Public hearing.
A. The city council shall conduct a public hearing on the application for a determination of vested rights.
B. After the public hearing, the city council shall make a decision as follows:
1. Whether the applicant’s use of the property complies with the waiver granted by city of Lincoln City and state of Oregon; and
2. Whether the applicant had a common law vested right on December 6, 2007, to complete and continue the use described in the waiver.
C. 1. The city council decision shall be based on the analysis of the staff report submitted by the planning director and the evidence and testimony contained in the record and the applicable laws.
2. The planning director’s recommendation and city council decision shall be consistent with Oregon appellate decisions addressing vested rights issues and shall be based on a multifactor test that will include consideration of the factors that the courts have identified as relevant to aid in the equitable balancing test required for a determination of vested rights:
a. The ratio of expenditures incurred to the total cost of the project;
b. The good faith of the owner;
c. Whether the owner had notice of the proposed change in law before starting the improvements;
d. The type of expenditures, i.e., whether the expenditures have any relation to the completed project or could apply to other various uses of the land;
e. The nature, location, and ultimate cost of the project;
f. Whether the actions rise beyond mere preparation; and
g. Other relevant factors.
D. A copy of the planning director’s report and recommendation shall be mailed to the applicant, the applicant’s representative, and any person who submitted a written request for a copy of the report and recommendation. The report and recommendation shall be mailed not less than 10 days prior to the date of the city council hearing on the application.
E. A copy of the planning director’s report and recommendation may be given at any time to the Lincoln City planning commission for comment. A copy of the Lincoln City planning commission comments on the application and recommendation, if any, shall be transmitted in writing to the city council and made a part of the record at the public hearing under “agency comments.” (Ord. 2008-02 § 1)
17.94.060 Consent agenda.
A. Notwithstanding this section and LCMC 17.94.050, if the planning director determines that an application establishes both compliance with the waiver and a vested right without the need for additional evidence or analysis, the application will be placed on the city council’s public meeting consent agenda for final action. If an applicant, any city councilor, or any member of the public requests a hearing on the application, it will be set for a public hearing before the city council pursuant to this section.
B. Notice that an application will be considered on the consent agenda will be mailed to the applicant and to the owners of real property within 250 feet of the subject property.
C. Notice shall be mailed not less than 10 days prior to the date the city council will consider the consent agenda. (Ord. 2008-02 § 1)
17.94.070 Notice of public hearing.
A. Notice of a public hearing before the city council shall be mailed to the applicant and to the owners of record of real property within 250 feet of the subject property. Notice shall be mailed not less than 10 days prior to the scheduled hearing.
B. The notice of the public hearing shall include a summary of the planning director’s report, if it was not included in a consent agenda notice.
C. The failure of any person to receive notice of a public hearing shall not affect or invalidate any proceeding under this chapter. (Ord. 2008-02 § 1)
17.94.080 City council final decision – Appeal.
A. The city council shall consider the planning director’s recommendation and all documents, evidence and testimony in the record. The city council shall enter an order determining whether the applicant’s use of the property complies with the waiver and whether the applicant had a common law vested right on December 6, 2007, to complete and continue the use described in the waiver.
B. If the city council determines that the applicant has a common law vested right to complete and continue the use, the city will issue land use and development permits in accordance with federal, state and city laws and regulations.
C. The decision of the city council will be subject to review by writ of review as provided in Ballot Measure 49, under ORS 34.010 through 34.102. (Ord. 2008-02 § 1)