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Agenda Item - 2024-03-19 - Number 6.2 - Appointments of Expedited Land Division and Middle Housing Land Division Referees 6.2 F °� COUNCIL REPORT � o OREGO\-\ Subject: Appointment of Expedited Land Division and Middle Housing Land Division Referees Meeting Date: March 19, 2024 Staff Members: Jessica Numanoglu, Community Development Director Report Date: February 23, 2024 Evan Boone, Deputy City Attorney Departments: Community Development City Attorney's Office Action Required Advisory Board/Commission Recommendation ❑X Motion ❑ Approval ❑ Public Hearing ❑ Denial ❑ Ordinance ❑ None Forwarded ❑ Resolution ❑X Not Applicable ❑ Information Only Comments: ❑ Council Direction ❑X Consent Agenda Staff Recommendation: Appoint Josh Soper and Joe Turner as Expedited Land Division and Middle Housing Land Division Referees. Recommended Language for Motion: Move to appoint Josh Soper and Joe Turner as Expedited Land Division and Middle Housing Land Division Referees. Project/ Issue Relates To: Appeals of Expedited Land Division and Middle Housing Land Divisions Issue before Council (Highlight Policy Question): ❑Council Goals/Priorities ❑Adopted Master Plan(s) ❑X Not Applicable ISSUE BEFORE COUNCIL Shall the Council appoint Josh Soper and Joe Turner as on-call Expedited Land Division and Middle Housing Land Division (ELD) Referees? Respect. Excellence. Trust. Servi e. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO, OR 97034 WWW.LAKEOSWEGO.CITY Page 2 BACKGROUND Typically, partitions and subdivisions are reviewed and approved under the Community Development Code as follows: • Partitions: staff decision; appeal to DRC/public hearing; appeal to Council. • Subdivisions: DRC public hearing; appeal to Council. Appeals following the Council decision are to the Land Use Board of Appeals, Oregon Court of Appeals, and Oregon Supreme Court. In 1995, the Oregon Legislature mandated an alternative expedited land division review process under ORS 197.360 et seq. for any partition or subdivision that meets the following requirements: (A) Includes only land that is zoned for residential uses and is within an urban growth boundary. (B) Is solely for the purposes of residential use, including recreational or open space uses accessory to residential use. (C) Does not provide for dwellings or accessory buildings to be located on [Sensitive Lands or Willamette River Greenway]; (D) Satisfies [the City's] minimum street or other right-of-way connectivity standards....; (E) Will result in development that either: (i) Creates enough lots or parcels to allow building residential units at 80 percent or more of the maximum net density permitted by the zoning designation of the site; or (ii) Will be sold or rented to households with incomes below 120 percent of the median family income for the county in which the project is built. In 1995, per ORS 197.365, that process was available to an applicant that met the above requirements (Opt-In); in 2015, the expedited land division process was to be used unless the applicant elected not to do so (Opt-Out). In 2021, the Legislature required ministerial review of middle housing and created Middle Housing Land Divisions. If a developer seeks to develop a middle housing development under a middle housing land division, the middle housing land division applicant can only use the expedited land division process (No Opt-Out). [ORS 92.031(4)(a)]. The expedited land division process requires: • A staff decision within 63 days from the date the application is complete; • Any person challenging the staff decision may file an appeal within 14 days, including a $300 deposit. • The appeal is to a referee, rather than the Development Review Commission. ORS 197.375(1). Respect, Excel'ence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 3 o The appeal must be heard by a referee appointed by the City and the referee cannot be an employee or official of the City. ORS 197.375(2). • A public hearing is not required. Instead the process is determined by the referee, who may use "any procedure for decision-making consistent with the interests of the parties to ensure a fair opportunity to present information and argument." ORS 197.375(3). • The referee must issue a decision within 42 days after the appeal is filed. [ORS 197.375(4)(c)]. • If the appealing party does not improve its position, additional costs of up to $500 shall be assessed; the City shall pay the costs of the appeal not assessed against the appellant. If the party improves its position, the deposit must be returned. ORS 197.375(6). • An appeal of the referee's decision to go directly to the Oregon Court of Appeals, bypassing the City Council and the Land Use Board of Appeals. ORS 197.375(7), (8). To date there have been two appeals of Expedited Land Divisions and no Middle Housing Land Divisions. DISCUSSION An ELD Referee must be appointed by the City. Because of the tight timeline if an ELD appeal is filed for a decision to be issued, it is necessary that the City appoint ELD Referees beforehand. Pursuant to the City's procurement process for personal services, the City Attorney's Office solicited statements of experience from three persons/firms, one of which was COBID qualified, that have extensive land use experience. The City Attorney and Community Development Director reviewed the statements of experience and fee rates and recommend that Joe Turner and Josh Soper be appointed as ELD referees for Lake Oswego. • Mr. Soper has served local governments since 2011, as Coos County Counsel and Sherwood City Attorney, focusing on land use matters and proceedings, and other municipal law matters. He is now a member of Beery, Elsner and Hammond, a law firm that exclusively provides legal services to governments. [See Attachment 1]. • Mr. Turner's practice is limited to acting as a hearings officer. He provides hearings officer services for numerous jurisdictions in Oregon and Washington. He was appointed as an ELD referee for the City in 2017; the contract has now expired. [See Attachment 2]. The Planning Department would enter into on-call contracts (five years, with right to renew) with each appointed ELD Referee. If the services of an ELD Referee are needed, the Community Development Director would select one to serve for that case, based on availability and other factors. Respect, Excel'ence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 4 FISCAL IMPACT The fiscal impact depends on whether an ELD appeal is filed. If filed, the City bears the cost based on the ELD Referee's hourly rate and the amount of time required, which is typically 5-15 hours ($1375 - $4275). Depending on the results of the ELD appeal, the applicant may be liable to the City for up to $500. RECOMMENDATION Appoint Josh Soper and Joe Turner as Expedited Land Division and Middle Housing Land Division Referees. ATTACHMENTS 1. Excerpted Proposal (Statement of Qualifications) —Josh Soper 2. Excerpted Proposal (Statement of Qualifications) —Joe Turner Respect. Excel'ence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY ACHIEVEMENTS JOSHUA P. SOPER Editor in Chief Animal r Joshua P. Soper has over 10 years of � Law Review experience as in-house counsel for local Pro Bono Service governments in Oregon, including Award Recipient serving as county counsel for Coos County, and most recently, as city MEMBERSHIPS attorney for the City of Sherwood. Josh's practice is focused on land use issues, Oregon State Bar —» including legislative drafting, hearings Oregon Supreme Court and appeals, and general advice. U.S.District Court for the District of Oregon EXPERIENCE OSB-Government Law BEERY,ELSNER& HAMMOND,LLP Section Of Counsel 2022-Present OSB-Real Estate and Land Use Section Provides legal services to cities, counties, and special districts. Practice Oregon City Attorneys areas include land use, public contracting, public records, public meetings, Association Executive public administration, tort liability, elections, real property law, labor and Committee employment law, and constitutional law. CITY OF SHERWOOD SPEAKING TOPICS City Attorney 2015-2022 Government Relations Served as chief legal counsel to the City Council, City boards and Charter Amendments commissions, City staff, and Urban Renewal Agency in areas including Public Records land use, public contracting, public records and meetings, tort liability, elections law, real property, labor and employment law, and constitutional Public Meetings law. Served as City Prosecutor in Sherwood Municipal Court. OFFICE OF COOS COUNTY ATTORNEY VOLUNTEERING County Counsel 2011-2015 Oregon State Bar Began as Assistant County Counsel and was promoted in 2013 to County Disciplinary Board, Counsel, after serving as interim for eight months. Served as legal counsel House of Delegates, to the Board of Commissioners, other elected officials and county boards, Public Service Advisory and department heads on all civil matters, including labor and employment Committee,and law and land use law, among other topics. Served as County's lead Lawyers Assistance Committee negotiator with its seven collective bargaining units. Oregon City Attorneys EDUCATION Association Lewis&Clark Law School J.D., 2011 University of Michigan B.A. Proposal By Joe Turner P.C., Municipal Hearings Official To Provide On-Call Referee Services to the City of Lake Oswego, Oregon The following is a proposal by the firm of Joe Turner P.C., Municipal Hearings Official, to continue providing On-Call Referee services for the City of Lake Oswego (the "City"). I am the sole employee of the corporation and I will be responsible for all work performed pursuant to this proposal. Qualifications: I am a member of the Oregon and Washington Bars and I have worked as an attorney for nearly 30 years. I understand the nature of the work to be done for the City, having enjoyed serving as the City's On-Call Referee for the past six years and as a hearings official in more than twenty other jurisdictions for as long as twenty-three years. I have reviewed and decided five Expedited or Middle Housing Land Division appeals in four different jurisdictions (the cities of Lake Oswego, West Linn, and Gearhart, and Clackamas County), and conducted more 3,500 hearings, including nearly 1,300 land use hearings. My extensive experience as a hearings official in multiple jurisdictions in two states makes me uniquely qualified to review, understand and apply the laws of different jurisdictions. The following table summarizes my experience as a hearings official. Jurisdictions served Subject(s) Started Ended Year s Lake Oswego, OR Land use referee 2017 Current 6 Tigard, OR Land use 2004 Current 19 Clackamas County, OR Dog Control & 2011 Current 12 Sheriff's Hearings Clackamas County, OR Land use 2021 Current 2 Clackamas County, OR Land use 1999 2005 & 7 2006 Gresham, OR Land use 2000 Current 23 Sherwood, OR Land Use 2004 Current 19 Metro, OR Land use 1997 2002 6 Fairview, OR(referee) Land use 1997 2002 6 Washington County, OR Land Use 2013 Current 10 Washington County, OR Land Use 2006 2007 .75 (Interim) Jurisdictions served Subject(s) Started Ended Year s Portland, OR I Land Use 2015 2018 I 4 Multnomah County, OR Land Use 2015 Current 8 Hillsboro, OR Land Use 2015 Current 8 Happy Valley, OR Land Use 2016 Current 7 Portland, OR Land use 2015 2018 5 City of Gearhart Land use referee 2005 2005 1 West Linn, OR Land use referee 2018 Current 5 Clark County, WA Land use/Enf 2000 Current 22 La Center, WA Land use 2001 Current 21 Washougal, WA Land use 2003 Current 19 Vancouver, WA Land use/Enf 2001 2010 21 Vancouver, WA(alternate) Land use/Enf 2010 Current 12 Camas, WA Land use/Enf 2006 Current 16 Woodland, WA Land use 2009 Current 13 Ridgefield, WA Land use 2009 Current 13 Battle Ground, WA Land use 2010 Current 12 Stevenson, WA Land Use 2015 Current 7 Skamania County, WA Land Use 2016 Current 6 (alternate) White Salmon, WA Land Use 2019 Current 4 Kalama, WA Land Use 2019 Current 4 For appeals of Expedited or Middle Housing Land Division, I review the public record, establish a schedule for the submittal of written comments in response to the appeal and issue a notice to relevant parties advising them of the submittal schedule and relevant appeal issues, and issue my decision based on the exhibits in the record. I write a well- organized and concise order that complies with the law in a timely manner. I explain what the relevant facts and law are and how they were applied in a given case. I send my decision to the City and all parties of record within the deadlines established by state law and the City Code. My long-term employment as a hearings official in multiple jurisdictions demonstrates my ability to establish and maintain effective working relationships with local government staff, attorneys and planners representing interested parties, and the general public, to write effective and defensible decisions, and to present as a neutral, objective, and effective decision maker. Pricing: I will charge the City for my time and expenses to carry out the scope of the On-Call Referee duties, including preparing for hearings, travel time to and from hearings and site City of Lake Oswego On-Call Referee Proposal By Joe Turner P.C.,Municipal Hearings Official Page 2