Ord 2378 - Measure 37 Claims
COUNCIL BILL NO. 2544
ORDINANCE NO. 2378
AN ORDINANCE REGARDING MEASURE 37 CLAIMS; ESTABLISHING A PROCESS FOR
THE CITY TO EVALUATE SAID CLAIMS SO THAT THE CITY CAN DECIDE SAID CLAIMS
ON A RATIONAL BASIS; AND DECLARING AN EMERGENCY.
WHEREAS, on November 2, 2004, the Oregon voters passed Measure 37,
amending ORS Chapter 197; and
WHEREAS, it is necessary that the City pass this Measure 37 claims
processing ordinance as explained more fully herein; and
WHEREAS, it is appropriate that an emergency be declared so that this
Ordinance can be in place prior to the Measure 37 effective date of December
2,2004, NOW, THEREFORE,
THE CITY OF WOODBURN ORDAINS AS FOLLOWS:
Section 1. FindinQs. The City makes the following findings:
A. On November 2, 2004, the voters of the State of Oregon approved
Measure 37. The measure amends ORS Chapter 197 to require, under certain
circumstances, payment of compensation to owners of real property if
government land use regulations reduce fair market property value; and
B. Measure 37 provides that to receive compensation, an owner of
real property must make a "written claim for compensation" to the government
entity enacting a new land use regulation or enforcing an existing a land use
regulation that allegedly restricts the use of their property and has the effect of
reducing its fair market value; and
C. Measure 37 authorizes the City to adopt necessary claims
procedures; and
D. Measure 37 requires payment of just compensation for any
reduction in fair market value of real property, or in the alternative allows cities
to modify, remove or not apply the land use regulation allegedly reducing a
property's fair market value; and
E. The City has a duty to safeguard public funds and not pay public
funds to private parties without a legal justification and a rational basis; and
Page 1 - Council Bill No. 2544
Ordinance No. 2378
TI
F. Measure 37 imposes a new duty on the City to review claims for
compensation and make decisions on those claims. A determination to waive
or modify a land use regulation, or compensate a property owner must be
based on substantial factual information and analysis. Necessary information
must be provided by a real property owner when making a written claim for
compensation; and
G. Measure 37 states that if a public entity enacts or enforces a new
land use regulation or enforces a land use regulation enacted prior to the
effective date of the measure that restricts the use of private real property or
any interest therein and has the effect of reducing the fair market value of the
property, or any interest therein, then the owner of the property shall be paid just
compensation; and
H. Except for certain new land use regulations, the City finds it is
necessary and required that the City make a Measure 37 determination as to
whether a land use regulation should be enforced prior to a claim accruing
under Measure 37; and
I. The City finds that it is necessary for Measure 37 claimants to
provide factual and analytical information regarding their claims so that the City
can evaluate the claims and have a rational basis to decide the claims.
Section 2. Accrual of Claims. Except in cases where the enactment of a
new land use regulation by the City is shown by Claimant to restrict the use of
private real property and have the effect of reducing the fair market value of
the property, no enforcement of a land use regulation under Measure 37 shall
be deemed to have occurred and no claim under Measure 37 shall have
accrued until the City is provided necessary information under this Ordinance to
evaluate and decide the Measure 37 claim presented by Claimant on a
rational basis.
Section 3. Definitions. As used in this Ordinance, the following words
and phrases mean:
City Administrator. The City Administrator of the City of Woodburn, or the
City Administrator's designee.
Claim. A claim filed under Measure 37.
Claimant. The owner of property making a claim under Measure 37 and
this Ordinance, or their designee, so long as written authorization is provided to
the City by the property owner for the designee to represent the owner in
making the claim.
Page 2 - Council Bill No. 2544
Ordinance No. 2318
"Ii T
Exempt Land Use Regulation. A land use regulation that:
1 . Restricts or prohibits activities commonly and historically
recognized as public nuisances under common law;
2. Restricts or prohibits activities for the protection of public
health and safety, such as fire and building codes, health and sanitation
regulations, solid or hazardous waste regulations, pollution control regulations,
wetlands and floodplain regulations, grading and fill regulations, landslide
hazard regulations, and street regulations, wireless communication facility siting
regulations, tree preservation regulations, sign regulations, setback and fencing
regulations and natural resource regulations to the extent they are determined
necessary for public health and safety;
3. Is required in order to comply with federal law;
4. Restricts or prohibits the use of property for the purpose of
selling pornography or performing nude dancing;
5. Was enacted prior to the date of acquisition of the property
by the owner or a family member of the owner who owned the subject property
prior to acquisition or inheritance by the owner, whichever occurred first; or
Family Member. Includes the wife, husband, son, daughter, mother,
father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law,
mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild,
grandparent, or grandchild of the owner of the property, an estate of any of the
foregoing family members, or a legal entity owned by anyone or combination
of these family members or the owner of the property.
land Use Regulation. Includes:
1. Any statute regulating the use of land or any interest therein;
2. Administrative rules and goals of the Land Conservation and
Development Commission;
3. Local government comprehensive plans, zoning ordinances,
land division ordinances, and transportation ordinances; and
4. statutes and administrative rules regulating farming and forest
practices as applicable to lands in the City.
Page 3 - Council Bill No. 2544
Ordinance No. 2378
" r
A land use regulation does not include any City system development
charge or any other City development fee or charge.
Owner. The present Owner of the property, or any interest therein.
Section 4. Claim FilinQ Procedures.
A. A person seeking to file a claim under this Ordinance must be the
present owner of the property that is the subject of the claim at the time the
claim is submitted. The claim shall be filed with the City Administrator's office, or
another department of the City if so designated by the City Administrator.
B. A claim shall include a completed claim form, which will be
provided by the City, together with the following additional information:
1. The name(s), address(es} and telephone number(s) of all
owners, and anyone with any interest in the property, including lien holders,
trustees, renters, lessees or easement holders, and a description of the ownership
interest of each;
2. The address, tax lot, and legal description of the real property
that is the subject of the claim, together with a title report issued by a title
company no more than 30 days prior to the submission of the claim that reflects
the ownership interest in the property, or other documentation reflecting sole
ownership of the property by Claimant, and the date the property was acquired
by the present Owner. Where it is necessary for the City to evaluate the claim,
all "chain of title" information shall be included;
3. The land use regulation that Claimant alleges restricts the use
of the real property and allegedly causes a reduction in the fair market value of
the property;
4. Claimant shall specify the remedy sought. Claimant may
specify alternative remedies. If Claimant is seeking "just compensation," the
amount of the claim, based on the alleged reduction in value of the real
property shall be supported by an appraisal by an appraiser licensed by the
State of Oregon establishing the reduction in the fair market value of the
property as of the date of the claim;
5. Copies of any leases or Covenants, Conditions and
Restrictions (CCR's) applicable to the property, if any, that impose restrictions on
the use of the property, or which would affect its valuation;
Page 4 - Council Bill No. 2544
Ordinance No. 2378
.~ y
6. Identification of the particular use that is proposed for the
property and proof that the requested use was allowed as proposed at the time
the owner or family member acquired the property;
7. Where the claim is based on family descent, proof that the
former owner(s} was a family member of the present owner.
8. A list of names of property owners, certified by either a title
company or the Marion County Assessor, or all current owners of record of all
properties that lie within 500 feet of the perimeter boundary of the real property
subject to the claim;
9. Signatures of all owners or those claiming ownership in the
property over which the claim is being made; and
10. A deposit for costs in the amount of $500, and which will be
administered, billed and collected as provided for in this Ordinance.
Section 5. Voluntary Claim Conference. Before submitting a claim, or at
any time after a claim is submitted, Claimant may request a claim conference
with the City Administrator or designee. The City Administrator or designee is not
authorized to settle any claim at a Claim Conference, but may use the
conference to fully discuss the claim with Claimant and may include information
on this discussion in the City Administrator's report to the City Council.
Section 6. Burden of Proof. Claimant has the burden of presenting
sufficient evidence under this Ordinance so that the City can rationally apply
Measure 37 to the claim.
Section 7. Claim Review Process.
A. The City Administrator shall assess any claim and make a
recommendation to the City Council on the disposition of the claim.
B. The City Administrator shall mail notice of the claim to Claimant and
to all owners of record of the property, and to all owners of property within five
hundred (500) feet of the property that is subject of the notice, as listed on the
most recent property tax assessment roll where such property is located.
C. The City Administrator's notice shall:
1. State the basis of the claim, the amount of the compensation
sought and the regulation that causes the compensation to be alleged to be
due.
Page 5 - Council Bill No. 2544
Ordinance No. 2378
...... T
2. Identify the property by the street address or other easily
understood geographical reference;
3. State that persons notified may provide written comments on
the claim, and provide the date written comments are due or, if a hearing has
been scheduled, the date, time and location of the hearing;
4. Identify the City representative and telephone number to
contact to obtain additional information; and
5. State that a copy of the claim and the supporting documents
is available for inspection at no cost, and that copies will be provided at
reasonable cost.
D. The City Administrator shall schedule a public hearing, in the City
Administrator's discretion, after having an opportunity to review the Claim.
E. If a hearing is conducted:
1. Claimant and all interested parties may present and submit
documents and evidence.
2.
the hearing.
Any staff report used at the hearing shall be available prior to
3. The City, at its discretion, may reopen a record to admit new
evidence or testimony.
4. The failure of a person entitled to notice to receive notice as
provided in this section shall not invalidate such proceedings. The notice
provisions of this section shall not restrict the giving of notice by other means.
F. The City Administrator shall make a recommendation on the claim
to the City Council applying the standards of Measure 37 and based on all of
the information received pursuant to this Ordinance.
G. The City Administrator may, in the City Administrator's discretion,
retain the services of an appraiser to appraise the property and evaluate the
claim to assist in determining the validity of the Claim.
H. In deciding a Claim, the City Council will consider the standards of
Measure 37 and the information presented by Claimant pursuant to this
Ordinance; the benefit(s) accruing to the public arising as a result of application
Page 6 - Council Bill No. 2544
Ordinance No. 2378
.~ y
of the regulation; and the burden to the public in paying compensation to
Claimant, taking into consideration the available financial resources of the City.
The City Council may take, but is not limited to taking, anyone or more of the
following actions on a claim, as appropriate:
1. Deny the claim based on, but not limited to, anyone or more
of the following findings:
(a) The land use regulation does not restrict the use of the
private real property;
(b) The fair market value of the property is not reduced by
the enactment, enforcement or application of the land use regulation;
(cl The claim was not timely filed;
(d) Claimant failed to provide the necessary information
under this Ordinance;
(e) Claimant is not the property owner, or the property was
not owned by a family member if that is required for compensation, or was not
the property Owner at the time the land use regulation was enacted, enforced
or applied;
(f) The land use regulation is an exempt land use
regulation;
(g) The land use regulation in question is not an enactment
of the City;
(h) The City has not taken action to enact, enforce or
apply the land use regulation to the property;
(i) The owner is not entitled to compensation under
Measure 37, for a reason other than those provided herein.
2. Award compensation, either in the amount requested, or in
some other amount supported by the evidence in the record. Payment of any
compensation is subject to the availability and appropriation of funds for that
purpose.
3. Modify the regulation.
4. Remove the regulation.
Page 7 - Council Bill No. 2544
Ordinance No. 2378
", ,
5. Not apply the regulation.
6. Acquire the affected property through negotiation or
eminent domain.
7. Take such other actions as the City Council deems
appropriate consistent with Measure 37.
I. If the City Council removes or modifies the challenged land use
regulation, it may, at its discretion, put back into effect with respect to the
subject property, all of the land use regulations in effect at the time Claimant
acquired the property.
J. The City Council shall have the right to condition any grant of
waiver or modification of land use regulations for any purpose which protects
the health, safety and welfare of the public. Any condition so imposed must be
clear and concise and related directly to the claim and the use being proposed
therein. Failure to comply with any condition of approval is grounds for
revocation of the approval of the claim, grounds for recovering any
compensation paid and grounds for revocation of any other action taken under
Measure 37 and this Ordinance. All conditions, time limits or other restrictions
imposed with approval of a claim will bind all subsequent owners of the
property.
K. A decision by the City Council to remove or modify a land use
regulation shall result in the proposed use allowed by the waiver or modification
being thereafter considered a non-conforming use under Oregon Revised
statutes, Oregon Administrative Rules, and the Woodburn Development
Ordinance. Upon grant of waiver or modification, Claimant shall cause notice
thereof by way of a "License" form provided by the City, to be recorded in the
deed records of the subject property so that all future owners thereof are put on
notice of the non-conforming use status of the development on the property.
L. Any waiver or modification of land use regulation granted pursuant
to this Ordinance under the authority of Measure 37 is personal and shall not be
transferred to any third party.
Section 8. Deposit and Final Bill.
A. Claimant shall be required to deposit with the City the sum of $500
as costs for the processing of the claim. The City shall maintain a record of its
claim processing costs, including the costs of obtaining information required
herein which Claimant does not provide to the City.
Page 8 - Council Bill No. 2544
Ordinance No. 2378
" ,
B. If a claim is found to be valid by the City or a Circuit Court, then the
City shall refund the amount of the deposit to Claimant.
C. If a claim is finally determined to be invalid, then the City
Administrator shall send Claimant a final bill showing the total costs incurred by
the City in reviewing and acting on the claim, showing credit for the deposits
posted, and either refund or bill the balance as dictated by the deposit ledger.
D. If the property owner owes an amount to the City and does not pay
the amount due within 30 days after the final bill is sent, then the City shall
pursue collection, including filing a lien on the property. The City shall be
entitled to costs of collection, including attorney fees, costs and disbursements
incurred in collection.
Section 9. Appellate Riahts. Any decision under this Ordinance is not a
land use decision, and none of the formalities required of land use decisions by
statue, rule or local ordinance are necessary. Appeal of any final decision of
the City made hereunder shall not be to the Oregon Land Use Board of
Appeals, but to Marion County Circuit Court on Writ of Review pursuant to ORS
34.010 to 34.102.
Section 10. Record Keepina. The City shall keep a central record of all
Claims made hereunder and the disposition thereof. Specific notation shall be
made on the comprehensive plan and zone maps of the existence and extent
of any waiver or modification granted under this Ordinance.
Section 11. Private Cause of Action. If the City's approval of a claim by
removing or modifying a land use regulation causes a reduction in value of
other property located in the vicinity of the property, the owner(s) of the other
property shall have a cause of action in Circuit Court to recover from Claimant
the amount of the reduction. This section shall not be construed to create a
cause of action against the City of Woodburn.
Section 12. Attorney Fees. If an owner commences an action to collect
compensation and the City prevails, the City is entitled to all fees and costs it
incurred, as well as any sum that a court, including an appellate court, deems
reasonable as attorney fees.
Section 13. Severabilitv. If any phrase, clause, or other part or parts of this
Section 1.950 is found to be invalid by a court of competent jurisdiction, the
remaining phrases, clauses and other part or parts shall remain in full force and
effect .
Page 9 - Council Bill No. 2544
Ordinance No. 2378
.,.. T
Section 14. Emeraency Clause. This Ordinance being necessary for the
immediate preservation of the public peace, health, and safety, an emergency
is declared to exist and this Ordinance shall take effect immediately upon
passage by the Council and approval by the Mayor.
Approved as to form: r-rJ. ~~
City Attorney
/ / ~ sO - 200 Lf-
C.x(//
Date
..---~>
//'
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
November 29, 2004
November 29, 2004
December 1, 2004
Filed in the Office of the Recorder
December 1, 2004
ATTEST:
--
Page 10- Council Bill No. 2544
Ordinance No. 2378
.. y