Minutes - Council - 05/18/2005 - Special

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the petitioner must pay the entire cost even though others will benefit from it. The petitioner must then also pay for service for all of the non-petitioning properties. The Charter amendment does not require that the developer put money in for an oversized pipe; however, the City will not extend an undersized pipe. Therefore, there will be an oversizing cost and if the developer has to pay for it ail, they would have to pay oversize costs as well. When a feasibility report is done, it must identify what properties will have service available. It will have to determine the costs that would be charged to be connected. They would have to pay whatever costs are associated with this. He stated that in his opinion, this proposed amendment is manifestly unconstitutional and illegal. Why it is manifestly unconstitutional and illegal is because it constitutes a taking of the petitioner's property by the City without just compensation. The taking clause of the Fifth Amendment to the Constitution permits the taking of private property for public use only upon payment of just compensation. It has been made applicable to the states through the Fourteenth Amendment. Courts have held that to the extent that a municipality's exactions, impact fees or other conditions exceed the developer's proportionate share of a public facility's cost, it is an unconstitutional taking of property. The City cannot take private property without paying a compensation for it. The City cannot take money from one taxpayer for a private purpose in any case. The money is not for public - it is only for the private property owners in that area. The only thing here is for private purpose. The City cannot charge a petitioner or developer of a subdivision either by special assessment, tax, etc., for public improvements that exceeds a reasonable share of the project. The Constitution says it cannot exceed the benefit - and the City has to show benefit. You cannot charge only some and leave out other benefited members. This amendment would allow that to happen. The cost has to be proportional to benefit. He presented a flow chart and explained that it refers to if the City Council decides the petition is manifestly unconstitutional. If the Council thinks it is not manifestly unconstitutional, they have to call for an election. This chart assumes Council decides it is manifestly unconstitutional. Council then has two choices - to call an election or decline to call an election. If Council declines: - the decision is left alone - no one brings a challenge to that; or the petitioner brings a legal challenge and seeks a court order for the City Council to call for an election. If that's the case, if the City wins the challenge, that's the end of it. If the City would lose, the Court might disagree and rule that it is constitutional and the City has to hold an election, or the Court could order the City to call an election without determining constitutionality - it's discretionary with the Court. It's possible this proposed amendment will fail in an election. If it passes, the question can still be litigated. If the Court orders the election, the City Council calls the election. There are two possible results - fail or pass. If it fails, that' s the end of it. If it passes, the City Council can follow the Charter or they can decide even though the voters approved it, they will not violate the Constitution so they will not follow that amendment. If the City Council decides to follow it, a resident or developer could also challenge the question. If the challenger wins, it's over. If the challenger loses, the City may follow the Charter or disregard it. If the City calls the election and it's challenged, that prevails. The Courts have affirmed the decision by the City Council not to call an election if the amendment is shown to be manifestly unconstitutional or illegal. Mr. LeFevere referred to the 1994 case Dolan v. City of Tigard. This especially pertains to exactions, impact fees or other conditions placed upon a developer for public facilities outside of or extrinsic to the development upon which the fee is levied. These actions by municipalities have led courts to scrutinize the connection between such fees and the need generated by the development for the particular facility in question. If no connection is found by the court, the fees, dedications or exactions are considered to be an unconstitutional taking of property without compensation. Mr. LeFevere City Council - Special Meeting May 18, 2005 Page 3 of 12