December 02, 2004
(Updated) Council Adopts Initial (Mostly Toothless) Measure 37 Process
Delays Important Decisions on Fees And Notification
Note: This post has been updated. Any and all updates appear at the end of the original post.
As expected, yesterday the City Council adopted an initial set of guidelines (see also this story) for submitting claims under the provisions of Measure 37, which go into effect beginning today. Not quite as expected, at least based upon what originally was on the agenda, Council also chose to delay their decision on fees to be charged claimants, opting instead for language giving it the authority to impose such fees later on, and to retroactively do so for any claims filed before they set an actual fee.
According to the introductory remarks by Mayor Vera Katz, there was "no consensus as to the amount of the initial temporary fee." That fee had been set at $200 in the second of two ordinances on the agenda, but because of the lack of agreement the Mayor pulled that ordinance back to her office. In addition, a proposal by Commissioner Dan Saltzman to immediately institute a process of neighbor notification of any claims failed to gain the support of a Council majority.
After providing some general background information, Deputy City Attorney Kathryn Beaumont responded to questions from Council members.
Commissioner Jim Francesconi asked how the proposed procedures being contemplated by the City of Portland compare to those in other Oregon localities. Beaumont described the approaches of other Oregon cities and counties as "a whole range" -- some very aggressive, some fairly minimal, and others somewhere in the middle. She described Portland's proposed policies as "fairly simple, straightforward, [and] conservative".
"Conservative approach," Francesconi interjected. "That's a new term here." He asked for an elaboration.
Beaumont referred to "some of the aggressive approaches" elsewhere in Oregon -- including "very high fees to recover every cost incurred" by governments in the processing of claims, "very elaborate claim requirements", and establishing "private rights of action" by which neighbors could sue a claimant if the claim devalued their neighbor's property.
Asked by Francesconi why the Council was being urged to adopt a conservative approach, Marge Kafoury, Director of the Office of Government Relations said that it gives the Council "the option to make decisions later". For now, she said, no one knows what kind of claims the City will be seeing, their volume, or their quality. She added a reminder that the forthcoming session of the Oregon Legislature likely will be taking up issues resulting from passage of Measure 37.
Commissioner Dan Saltzman almost immediately proposed an amendment adding language requiring that neighbors within 500 feet of a claim be notified -- in part, he said, to foster the power of neighbors talking to neighbors. But Mayor Katz tried to fend him off for the time being, explaining that there were a lot of such issues the Council would have to address, but as it stood the Council couldn't even agree on an initial temporary fee.
With "claims starting tomorrow" Saltzman pressed his desire to add a notification provision right away. "If you propose that," Commissioner Randy Leonard chimed in, "I will support it."
(Somewhere in all of this conversation, Commissioner-elect Sam Adams, who was seated next to us in Council Chambers, mentioned that a neighbor notification process was precisely what he had come to urge the Council to adopt. In addition to neighors, he wanted other groups such as neighborhood associations and neighborhood business districts notified as well. He also had to borrow our copies of the ordinances on the agenda. Shouldn't a self-described wonk have his own?)
"You're not willing to agree on even a small fee," Katz asked, "but now this?"
Kafoury jumped back into the discussion, explaining that notification is part of a follow-up package expected to be brought before Council in January which will include other elements as well. As for why there had been no attempt to include notification (or other elements) right away, she argued that since the City did not intend to make any decisions on claims immediately (each claim triggers a 180-day clock), there was no reason to enact a full Measure 37 policy now.
Katz asked how the City would make a decision if a claim were filed on the first day (December 2), and what the time period would be.
Gil Kelly of the Bureau of Planning said that everyone was "sympathetic to the issue of public notice" but that it was not necessary to implement such a process immediately. Partly because of the 180-day window, and partly because there are plans to post every claim to the City website. He also said that notification is "directly tied" to the question of setting a fee for claims, given the costs involved in notification.
Katz asked when further refinements and additions to the City's policies regarding Measure 37 claims would be coming back before the Council. Kafoury said that two slots had already been reserved on the Council agenda -- one later this month, and a second in mid-January.
"We wont act on any of the claims until you disucss notificaiton issue," added Kelly.
"These are adequate explanation," Saltzman conceded, "but we are missing [the] important dynamic [of] neighbors talking to neighbors." He also said posting the claims to the City website was "great" but that too many people in need of notification would not have access to it.
Speaking both to the fee issue and the notification issue, Leonard said that he was "not in the mind to subsidize those who make a claim" and that he agreed "very much with Commissioner Saltzman's perspective" that immediate notificaiton of neighbors would help people begin to understand the implications of Measure 37.
(A brief interjection to note that it did not go unnoticed by us that we found ourselves in vigorous agreement with Commissioners Leonard and Saltzman, two commissioners we have frequently criticized for one reason or another. Given those other criticisms, we felt it would only be right and proper to point out our agreement with them on these issues.)
(And a second brief interjection to concur with something else that Adams at this point said to us, which was that those filing claims needed to know up front that their neighbors would be notified. IN other words, the Council needed to adopt a notification provision right away, because claims coudl start coming in on the first day after this Council session. It's an argument that no one managed to make in the course of the Council discussion.)
Francesconi asked what the staff recommendation on notification was going to be. Kelly explained that they had not yet gotten into the details of notification, such as the geographical area to be notified.
"What's the harm in over-notification and then changing it [later]?" Leonard asked.
"No harm" Kelly replied. "But it is tied to the fee issue if you want to do cost recovery."
Saltzman continued to press for having some sort of "default notification" to start with, effective immediately given the December 2 date for Measure 37 to be in effect. Francesconi, however, said that "one something this serious" it was important to wait until the Council had a specific staff recommendation before them. Katz said that it was clear that the entire Council would support some form of notification, at some point, but that the "issue is timing, distance, and how to pay for it."
Following public testimony (there was far less than we had expected, and we took no notes of what there was), Saltzman made his motion to add a provision requiring notification of people within 500 feet of a filed claim. Leonard made a motion to add neighborhood associations to the notifications.
(This is the point at which Adams mentioned that neighborhood business distracts needed to be notified as well.)
Francesconi said it all "seems very reasonable" but stressed that notification should be considered as part of the larger package of issues to be taken up by Council later on. He added that "in some circumstances business organizations should be notified" and that if staff beings back recommendations in two weeks that don't include notification, he will not support it. On the Saltzman amendment, he voted no.
Leonard voted yes on the Saltzman amendment.
Saltzman, of course, voted yes on his amendment, explaining that it was "just a default measure" that could be changed later.
Commissioner Erik Sten said he was in agreement on the concept of notification, but under the assumption that any claims that come in before Council adopts such a policy will trigger notice once there is a policy, he voted no on the Saltzman amendment. He added that if there wasn't a full package "quickly" then the Council needed to come back and add a notification provision on its own if necessary.
Katz, as should be clear from her comments throughout the debate, voted against Saltzman's amendment, thereby killing off any notification provision at least until later this month.
Council then moved on to the first of the two ordinances, with the change indicating that the Council has the authority to institute a fee for claims, and that when it does so those fees will apply to any claims filed prior to the adoption of the fee itself. In other words, any fee adopted later this month or in January would apply to all Measure 37 claims filed since the December 2 start date of the measure's provisions.
If our notes are an accurate reflection, Francesconi had the most to say before casting his vote, saying that it was important for staff to come back with the full package of provisions. He said that it was important both to "understand that voters have passed this" but also that it has "potential to create devastating impact." Saying that the City needed to "proceed very strategically" he said he did not support the most conservative approach, but also that he didn't "believe we should take the most aggressive approach either, given the dynamics of Portland with the rest of the state." He called the initial proposal for a $200 fee too little, but the fees imposed by some other Oregon localities too much. Being too agressive, he said, would be "perceived as Portland trying to thwart the will of the statewide voters."
All five members of the Council voted to approve the ordinance which institutes the basic procedures through which the City will accept and investigate claims filed under the provisions of Measure 37.
At that point, things went a little haywire, as Mayor Katz called for a vote on the second ordinance on the agenda related to Measure 37. Problem is, that's the ordinance that would have instituted a preliminary $200 fee for filed claims, and it had already been decided that this wasn't being voted on due to Council disgareement over the fee quesiton.
In the course of sorting this out, and Katz officially pulling the ordinance back to her office for more work and later consideration, Leonard made it clear where he stands on the matter of fees for Measure 37 claims: "I won't support anything that isn't 100% cost recovery."
As indicated above, Council is expected to take up further elements of the City's policy regarding Measure 37 claims later this month and in January, although neither slot is yet listed as an upcoming agenda item.
In the meantime, claimaints under the provisions of Measure 37 may begin filing claims with the City of Portland beginning today, without any knowledge of the fees that will be imposed upon them or any clear sense of which of their neighbors will be notified of their claim(s).
SImply put, to our mind: Members of City Council dropped the ball on this one. At the very least, an initial notification provision should have been included from the very beginning -- on that point Leonard and Saltzman were entirely correct. As for the fee issue, we have only one real question for now: Why in the world wasn't Council (and City staff) working to get a package together and prepared in advance, so it would be ready to go in the event of Measure 37's passage?
Update
Just a quick pair of additional links. There's an Associated Press story on claims being filed right off the bat, and here's the Measure 37 page from the state's Risk Management Division.