Amend ordinance to acquire certain permanent and temporary property rights necessary for the construction of the Bull Run Filtration Projects through negotiation or the exercise of the City’s Eminent Domain Authority (amend Ordinance 191094)
The City of Portland ordains:
Section 1. The Council finds:
- Ordinance No. 191094, passed by City Council on December 7, 2022, authorized the City to acquire certain permanent and temporary property rights necessary for the construction of the Bull Run Filtration Projects (Projects) through negotiation or the use of the City’s Eminent Domain Authority. The City will amend permanent and temporary easement access for Document No. 2018-058579.
- The City may exercise the power of eminent domain pursuant to Section 9-108 of the City Charter and Oregon Revised Statute (ORS) 223.005 through 223.105 when deemed necessary by the City Council to accomplish public purposes for which the City has responsibility, provided that power is exercised in accordance with the eminent domain procedures established by ORS Chapter 35 (Eminent Domain; Public Acquisition of Property), including those procedures that apply to notification, valuation, negotiation, relocation, and early possession, if necessary. Alternatively, the City may exercise the power of eminent domain pursuant to Section 9-108 of the City Charter and ORS 225.020.
- Portland Water Bureau has the responsibility to provide high-quality water and stewardship of the City’s water infrastructure, including implementation of safety improvements that benefit the public and City employees.
- Resolution No. 37460 directed Portland Water Bureau to plan, design, and construct the Projects, which include the Bull Run Filtration Facility Project and the Bull Run Filtration Pipelines Project, to protect public health and comply with the Environmental Protection Agency’s Long-Term 2 Enhanced Surface Water Treatment Rule. The filtration facility is being designed on 95 acres of City-owned property located in east Multnomah County, and new pipelines are being designed to connect the facility to the City’s existing water system.
- The Projects have been planned per appropriate engineering standards for the construction, maintenance, and improvement of the City’s water infrastructure in a way that minimizes property damage and protects the health and safety of City employees and the public. The Projects have been planned, designed, and located in a manner that is most compatible with the greatest public good and least private injury.
- To accomplish the goals and to construct the Projects as designed, the City must acquire the permanent and temporary property rights described and depicted in Exhibits 1(a) to 7(b) (Subject Property Interests) and incorporated by reference.
- The Subject Property Interests are required for the public purpose of completing the Projects, including, but not limited to, complying with the Environmental Protection Agency’s Long-Term 2 Enhanced Surface Water Treatment Rule. Acquisition of the Subject Property Interests is in the public’s interest.
- The cost to acquire the Subject Property Interests will be determined by appraisals that will comply with the requirements of ORS Chapter 35 (Eminent Domain; Public Acquisition of Property).
- Ordinance No. 191094 will be amended to include changes made to Document No. 2018-058579.
- Funding for the Projects was available in the Water Fund in the fiscal year (FY) 2022–23 Budget and the FY 2023-24 Budget and will be requested in the FY 2024–25 Budget.
NOW, THEREFORE, the Council directs:
- Ordinance No. 191094 is amended to update the Permanent Access Easement and Temporary Construction Easement regarding Document No. 2018-058579.
- The above findings form an integral part of the Ordinance and have the same force and effect as if they were adopted as an ordinance. The foregoing statement of authority, purpose, and need are reaffirmed herein. It is necessary for the preservation of public health, economic well-being, public safety, and public welfare of the City and members of the public served by the City that the City commence the acquisition process described herein and that is necessary for the Projects. The City is authorized by law to acquire the Subject Property Interests, and the Projects have been planned, designed, and located and will be constructed in a manner that will be most compatible with the greatest public good and least private injury.
- Subject to payment of just compensation and the procedural requirements of Oregon law, the Portland Water Bureau Director, Chief Engineer, or their designees, and the City Attorney are authorized to acquire the Subject Property Interests for the Projects through negotiation or the exercise of the City’s eminent domain authority to the extent negotiations fail, as discussed herein.
- The Portland Water Bureau Director or Chief Engineer and the City Attorney may negotiate and authorize payment of just compensation and are further authorized to enter into agreements with owners and/or interest holders of the Subject Property Interests to address construction management concerns within available Project budget funds.
- The Portland Water Bureau Director or Chief Engineer and the City Attorney are further authorized to offer owners and/or tenants of the Subject Property Interests the relocation benefits they are entitled to under federal and Oregon law within available Project budget funds.
- The power of eminent domain is hereby authorized concerning the Subject Property Interests, as needed.
- The Portland Water Bureau Director, Chief Engineer, or their designees, and the City Attorney are authorized to attempt to agree with the owners of the Subject Property Interests and other interest holders as to the compensation to be paid for the acquisitions. If no satisfactory compensation agreement can be reached, the City may commence and prosecute such condemnation proceedings, and hereafter with no further action on the part of the City, as may be necessary to determine just compensation or any other issue appropriate to be determined by a court in connection with the acquisition.
- This authorization is not intended to expand the jurisdiction of any court to decide matters determined or determinable by the City Council.
- The Portland Water Bureau is authorized to determine the continuing necessity or propriety of the acquisition authorized by this Ordinance, its quantity, quality, or locality, and to reduce or abandon the acquisition of any portion of the Subject Property Interests.
- The Portland Water Bureau Director, Chief Engineer, and the City Attorney are authorized to retain counsel necessary to assist with pre-condemnation work, negotiations with the owners or interest holders of the Subject Property Interests, and condemnation litigation, if necessary.
- Upon trial or any suit or action instated to acquire the Subject Property Interests, the attorneys acting for and on behalf of the City are authorized to make such stipulation, agreement, or admission as in their judgment may be for the best interest of the City and to take possession of the Subject Property Interests as appropriate in their judgment, without further Council approval.
- In accordance with ORS 35.265, Portland Water Bureau is hereby authorized to create a fund in the amount estimated to be the just compensation for the Subject Property Interests, which, if necessary, shall be deposited with the clerk of the court where a condemnation action is commenced.
- The Portland Water Bureau Director, Chief Engineer, or their designees, are hereby authorized to pay for the resulting obligations, agreements, or relocation benefits for the Projects from the Water Fund when demand is presented and approved by the proper authorities.
- The Mayor and Auditor are hereby authorized to draw and deliver checks chargeable to the Water Fund when demand is presented and approved by the proper authorities.
- All other terms and provisions of Ordinance No. 191094 remain the same and are not affected by this amendment.
Official Record (Efiles)
An ordinance when passed by the Council shall be signed by the Auditor. It shall be carefully filed and preserved in the custody of the Auditor (City Charter Chapter 2 Article 1 Section 2-122)
Passed by Council
Auditor of the City of Portland
Simone Rede
Impact Statement
Purpose of Proposed Legislation and Background Information
This legislation amends Ordinance No. 191094, passed by Council on December 7, 2022, which authorized the City of Portland to acquire certain permanent and temporary property rights necessary for the construction of the Bull Run Filtration Projects (Projects) through negotiation or the exercise of the City’s Eminent Doman Authority. Portland Water Bureau will amend permanent and temporary easement access for Document No. 2018-058579 as a condition of the Project’s Multnomah County land use approval process.
City of Portland (City) Resolution No. 37460 directed Portland Water Bureau to plan, design, and construct the Bull Run Filtration Projects (Filtration), which include the Bull Run Filtration Facility Project and the Bull Run Filtration Pipeline Project, to protect public health and comply with the Environmental Protection Agency’s Long-Term 2 Enhanced Surface Water Treatment Rule. The Projects include a planned water filtration facility on 95 acres of City-owned property and related pipelines to connect the facility to the existing water system.
The proposed legislation will amend authorization for Portland Water Bureau to acquire the permanent and temporary property rights described and depicted in Exhibits 1(a) to 7(b) (Subject Property Interests) and incorporated by reference. The Temporary Construction Easement was revised to allow construction vehicles to exit the property using the access at the southwest corner onto Dodge Park Boulevard by adding an easement area along the southern property line. The Permanent Access Easement is revised to include a turnaround at the southern end of the north/south access route.
The Filtration pipeline designs prioritize using existing City-owned property and public rights-of-way where feasible. Permanent easements are needed for new pipelines and supporting utilities that will connect the facility to the existing water system and provide required emergency access from a nearby right-of-way. Temporary construction easements are needed to provide additional working area and access during construction and will terminate after construction is complete. There are no other suitable options to connect Filtration facilities without acquiring easements.
Portland Water Bureau secured federal Water Infrastructure Finance and Innovation Act (WIFIA) funds for Filtration, so the City must follow federal and state processes for property rights acquisition. As part of the property acquisition process, the Portland Water Bureau must obtain authority from Portland City Council to acquire necessary property rights and negotiate terms and compensation with owners.
The proposed legislation complies with federal and state laws and processes governing property acquisition for federally funded projects.
Financial and Budgetary Impacts
The Projects costs are unchanged by this amendment, and the costs associated with the easements remain at $6,600,000. The primary costs associated with the legislation are compensation for the easements, relocation expenses, and consultant fees for property acquisition, appraisal, and legal services. These costs are discussed briefly below.
Compensation offered for each property interest will be based on an appraisal prepared by a certified appraiser and independently reviewed by another certified appraiser. Federal and state laws require the City to offer no less than the appraised value for each property interest acquired. The City may negotiate reasonable compensation and terms with owners after offers have been made. Consultant fees for property acquisition, appraisals, and some legal fees will be determined on a per-parcel basis.
The Projects budgets include a combined $6,600,000 to acquire property rights for the facility access and pipelines. Funds will be made available in the Water Fund fiscal year 2023–2024 Budget and will be requested in the FY 2024-25 (W02229 and W02563).
Other long-term costs may include property management, maintenance, and security; however, no changes to staffing levels or contract services are anticipated because of the legislation.
Community Impacts and Community Involvement
Portland Water Bureau has several public engagement tools dedicated to Filtration, which are supported by bureau staff and through contract services. Portland Water Bureau shares information through the Projects website, social media, press releases, the Annual Water Quality Report, bill inserts, postcards, and newsletters. Portland Water Bureau also engages the community at outreach meetings and events.
Additionally, the property owner affected by the legislation has been notified in writing of the Portland Water Bureau’s intent to acquire an interest in their property. Portland Water Bureau has met with and communicated with the property owner by phone and mail on multiple occasions so the bureau can understand their needs and complete the necessary field investigations to inform the Projects design and reduce impacts. The property owner has been informed of the date and time of the hearing when Portland City Council will consider the legislation.
100% Renewable Goal
The legislation does not affect the City’s total energy use or the City’s renewable energy use.