Chapter 15.12
Land Use Claims
Sections:
15.12.030 Applicability and exceptions.
15.12.050 Content of written claim.
15.12.060 Claim processing fees.
15.12.070 Claim review process.
15.12.080 Conditions of approval – Revocation of decision.
15.12.090 Ex parte contacts – Conflict of interest and bias.
15.12.110 Availability of funds to pay claims.
15.12.120 Private right of action.
15.12.130 Applicable state law.
15.12.010 Purpose.
The purpose of this chapter is to implement ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004, and to establish a procedure to process demands for compensation (claims) quickly, openly, thoroughly, and consistent with the law; to enable present real property owners (claimants) making claims to have an adequate and fair opportunity to present their claims to the Brownsville City Council (Council) to provide the Council with the factual and analytical information necessary to adequately and fairly consider claims; to ascertain City liability for compensation apart from state of Oregon (state) and Linn County liability; to take appropriate action under the alternatives provided by law; to preserve and protect limited public funds; to preserve and protect the interests of the community by providing for public input into the process of reviewing claims; and, to establish a record of decisions capable of withstanding legal review. [Ord. 690 § 1, 2004.]
15.12.020 Definitions.
For purposes of this chapter the following definitions shall apply:
“Appraisal” means a written appraisal concluding to fair market value of real property prepared by an appraiser licensed by the Appraiser Certification and Licensure Board of the State of Oregon pursuant to ORS chapter 674 and meeting the appraisal requirements set forth in Uniform Standards of Professional Appraisal Practice (USPAP). In the case of commercial or industrial property, the term “appraisal” additionally means a written appraisal concluding to fair market value prepared by an appraiser holding an MAI qualification (Member Appraisal Institute), as demonstrated by written certificate.
“Ballot Measure 37” means Ballot Measure 37, adopted by the voters of the state of Oregon on November 2, 2004, effective December 2, 2004, as an addition to ORS chapter 197.
“City Administrator” means the City Administrator of the City of Brownsville or his or her designee.
“Claim” means the “written demand for compensation” required to be made by an “owner” of “real property” under Ballot Measure 37. Demands shall not be considered made under Ballot Measure 37 until the City accepts the demand as complete, i.e., meeting the requirements for making a demand under this chapter.
“Claimant” means present owner(s) of real property. See definition for “owner.”
“Demand” means “claim” and “written demand for compensation” as defined herein.
“Exempt land use regulation” means those land use regulations which are specifically listed as exempt from compensation or waiver requirements as set forth in Ballot Measure 37 and this chapter.
“Family member” means 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 real property, an estate of any of the foregoing family members, or a legal entity owned by any one or combination of these family members or the owner of the real property.
“Land use” means a physical improvement on real property related to use of the land or an activity which is conducted on real property (examples: residential use, commercial use, industrial use, community service use, farm use or forest use). A further division of real property is not a land use.
“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. The City of Brownsville’s Comprehensive Plan, zoning code and land division code.
“Owner” means the present owner(s) of real property, or any interest therein, which is the subject of a claim. The owner is a person who is the sole fee simple owner of the real property or all joint owners whose interests add up to a fee simple interest in property, including all persons who represent all recorded interests in property, such as co-owners, holders of less than fee simple interests, leasehold owners, and security interest holders.
“Property” means private real property, or interest therein, as described in a deed or other legal instrument, which existed on the date of the claim.
“Reduction in value” means the difference in the fair market value, if any, of the property with certain land use regulations enforced or applied; and the fair market value of the subject property without those land use regulations enforced or applied to the property.
“Restricts the use” means a land use regulation that prohibits a land use or limits the manner in which it can be established on the property.
“Valid claim” means a claim submitted by the owner of real property that is subject to a land use regulation enacted and/or enforced by the City of Brownsville that restricts the use of the private real property in a manner that reduces the fair market value of the real property and meets all the requirements of this chapter.
“Written demand for compensation” means “claim” or “demand” as defined herein. [Ord. 690 § 2, 2004.]
15.12.030 Applicability and exceptions.
A. An owner of private real property located within the City of Brownsville may file a claim under this chapter if the City of Brownsville enacts or enforces a new land use regulation or enforces a land use regulation enacted prior to the effective date of Ballot Measure 37, which amended ORS chapter 197, and it 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.
B. This chapter, in compliance with ORS chapter 197, as amended by Ballot Measure 37, does not allow claims for certain categories of regulations which may reduce the fair market value of the property, or any interest therein. The categories of regulations that are exempt from claims for compensation include the following:
1. A regulation restricting or prohibiting activities commonly and historically recognized as public nuisances under common law and the criminal laws of Oregon, Linn County or the City of Brownsville;
2. A regulation restricting or prohibiting activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations;
3. A regulation required to comply with federal law;
4. A regulation restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing; or
5. A regulation enacted prior to the date of acquisition of the real 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. [Ord. 690 § 3, 2004.]
15.12.040 Scope of claims.
A. An owner of private real property located in the City of Brownsville who asserts a right to compensation under Ballot Measure 37 shall make a claim for compensation as provided in this chapter;
B. If an owner wishes to assert that more than one regulation restricts use of the property, and has the effect of reducing the fair market value of the property, all claims regarding that property must be filed simultaneously and considered by the City simultaneously;
C. Separate claims must be submitted for each parcel of real property;
D. Separate claims must be submitted for each noncontiguous parcel of real property for which it is claimed that one or more land use regulation(s) restrict the use of the property and which have the effect of reducing the fair market value of the property. Claims for contiguous parcels that were acquired at the same time must be submitted at the same time as part of a single claim. [Ord. 690 § 4, 2004.]
15.12.050 Content of written claim.
A. A claim pursuant to this chapter shall only be submitted to and accepted for review by the City Administrator, or the City Administrator’s designee, and shall include the following information:
1. A description of the private real property for which the owner is claiming compensation, including the street address and either a legal description or a County Tax Assessor’s description of the property, specifically identifying whether the claim relates to real property other than land or to a portion of the ownership less than fee simple absolute;
2. The name, address, and telephone number of all owners and anyone with an interest in the property, including lien holders, trustees, renters, and lessees, together with a description of the ownership interest of each;
3. The date the claimant acquired ownership of or an interest in the private real property and a copy of the document which provides proof of first ownership;
4. A title report, including title history, current within 30 days prior to the claim date, verifying the ownership or interests in the private real property;
5. If the claim is based upon the date a family member acquired the property, then documentation sufficient to establish the familial relationship along with a chain of title showing continual ownership;
6. Copies of any covenants, conditions and restrictions (CCRs), leases, or other encumbrances applicable to the real property;
7. Identification of the specific land use regulation which restricts the owner’s use of the real property, and for which the owner is claiming compensation;
8. A statement describing the manner in which, and the extent to which, the regulation restricts the use of the private real property and has the effect of reducing the fair market value of the property for which the owner is claiming compensation;
9. The amount of the claim, based upon the alleged reduction in value, supported by an appraisal of the private real property for which the owner is asserting a claim. If the value of the claim exceeds $10,000, then copies of two appraisals, prepared by different appraisers, must be included;
10. A statement of the relief sought by the owner, such as a monetary payment in a specific amount; waiver of the applicable regulation; or modification of the applicable regulation. If a modification of the regulation is sought, then a description of the desired modification must be included;
11. Payment of any required claim processing fee; and
12. The signature of the claimant.
B. The City Administrator shall conduct a completeness review within 30 days after submittal of the claim and shall advise the owner, in writing, of any material remaining to be submitted. Once all of the required materials for a complete claim are received, the City Administrator shall declare the claim complete and send the notice required by BMC 15.12.070(A) and (B).
C. Commencement of the 180-day period allowed for local government claim procedures prior to any cause of action being authorized for the owner in circuit court as specified in Ballot Measure 37 starts on the date the City Administrator deems the claim complete and accepts it for filing.
D. Notwithstanding a claimant’s failure to provide all of the information required by subsection (A) of this section, the City may review and act on a claim. [Ord. 690 § 5, 2004.]
15.12.060 Claim processing fees.
A. The claim processing fees shall cover the actual administrative costs to the City of Brownsville for processing a claim. An owner shall pay a deposit of $1,000 at the time they submit a claim to the City Administrator. Following final action by the City on the claim, the City Administrator shall provide an accounting of the actual administrative costs, including staff and legal costs, that the City incurred in reviewing and acting on the claim. The City of Brownsville shall refund any excess funds from the retainer to the owner within 30 days after the final decision, or shall bill for additional costs not covered by the retainer.
B. A billing for the amount of the unpaid administrative costs for processing the claim shall be forwarded by certified or registered mail, return receipt requested, to the owner. Payment shall be made to the City Administrator within 30 days from the billing date set out on the bill.
C. If the property owner does not pay the amount due within 30 days of the billing date, the City of Brownsville may pursue collection, including filing a lien on the property. The lien is perfected by filing it with the County Recorder’s Office in the deed records indicating the amount of the lien, the basis for the lien and the property to which the lien attaches.
D. The lien provided for in subsection (C) of this section shall be given priority over all liens except those for taxes and assessments and shall include interest at one-half of one percent per month accruing from the date the billing is sent to the owner of the property.
E. The lien provided for in subsection (C) of this section shall be foreclosed in the manner prescribed by state law for the enforcement of liens and collection of assessments.
F. No permits will be approved on properties with a lien for unpaid processing fees required by this section.
G. The City of Brownsville shall collect reasonable attorney’s fees and costs for collection of the debt, which may be made part of the lien and the debt. [Ord. 690 § 6, 2004.]
15.12.070 Claim review process.
A. After a claim for compensation is declared complete pursuant to BMC 15.12.050, the City Administrator shall mail notice of the claim to the claimant, other owners of record of the property, and all owners of property within 750 feet of the subject property. Additional mail notice shall be sent to any public entities with land use regulatory authority over the property and other organizations or persons as the City Administrator may designate.
B. The City Administrator’s notice under subsection (A) of this section shall:
1. Indicate the date that the claim was filed;
2. State the basis of the claim, the amount of the compensation sought and the land use regulation that the owner asserts gives rise to a claim;
3. Identify the property by the street address or other easily understood geographical reference;
4. State that persons noticed may provide written comments on the claim, and provide the date written comments are due;
5. Indicate a timeframe within which the City Council will take action on the claim and identify how interested persons can learn of the specific date the Council will meet on the matter, once a meeting date is set;
6. Provide the name and phone number of a City representative who can be contacted for additional information; and
7. State that a copy of the claim and the supporting documents submitted by the owner are available for inspection at no cost, or that copies will be provided at reasonable cost.
C. Written comments regarding a demand may be submitted to the City Administrator by any interested person. Comments must be received by the City Administrator within 14 days from the date of the notice required under subsections (A) and (B) of this section. The owner shall have an additional seven days after the deadline set out above to respond to any written comments received by the City Administrator. It is the duty of the owner to determine if comments have been received by the City Administrator.
D. The City Administrator shall prepare a staff report for the Council within 30 days after the comment period has ended. The report shall apply the standards of ORS chapter 197 to the claim and shall include options for Council action.
E. After the City Administrator has completed a draft staff report, the City Administrator shall send a copy of it to the City Attorney’s Office for review. The City Attorney’s Office will have 30 days for review.
F. After the City Administrator receives the comments from the City Attorney’s Office, the City Administrator will finalize the staff report and make it available to the public at least 10 days prior to the Council meeting.
G. The City Council shall conduct a public hearing before taking final action on the claim. The procedures for the hearing must include, but are not limited to, staff presentation and public testimony, followed by deliberation and a decision by the City Council.
H. The City Council’s options for its decision include, but are not limited to, the following:
1. Find the claim invalid and deny the claim based on one 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;
c. The demand was not timely filed;
d. The owner failed to comply with the requirements for making a demand as set forth in this chapter;
e. The owner is not the present property owner, or the property was not owned by a family member or the claimant 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 regulation as defined in Ballot Measure 37;
g. The land use regulation in question is not an enactment of the City;
h. The City has not taken final action to enact or enforce the land use regulation to the property;
i. The owner is not entitled to compensation under Ballot Measure 37, passed November 2, 2004, for a reason other than those provided herein;
2. Find the claim valid and award compensation, either in the amount requested, or in some other amount supported by the evidence in the record, subject to the availability and appropriation of funds for that purpose;
3. Find the claim valid and modify the regulation which restricts the use beyond those restrictions in place on the property at the time the owner acquired the property; or
4. Find the claim valid and waive the regulation which restricts the use beyond those restrictions in place on the property at the time the owner acquired the property.
I. If the City Council modifies or waives the challenged land use regulation in response to a claim by owner, the modification or waiver is valid only as to the owner during owner’s ownership of the property for those regulations listed in the claim which were found by the Council to be valid; all other current regulations remain in effect. The City Council may, at its discretion, reinstate any or all of the land use regulations in effect at the time the owner acquired the property. A City Council waiver is not a waiver of any state law or Linn County provision.
J. The final decision on a claim shall be made by the City Council. After review the City Council shall, under the standards of Ballot Measure 37, determine whether compensation is granted, the amount of compensation, if any, whether any exceptions to the requirement for compensation apply or whether the regulation should be modified, removed or deemed not to apply to the property. A copy of the City Council’s decision shall be sent by mail to the owner and to each individual or entity that participated in the City Administrator or City Council process, provided a mailing address was provided to the City Administrator as part of the claim process.
K. Waiver of a City land use regulation does not constitute a waiver of any corresponding Linn County or state statutes.
L. A decision by the City Council to waive or modify a land use regulation shall be personal to the owner and shall automatically become invalid and void upon transfer of any ownership interest in the subject property. Upon transfer of any ownership interest in the subject property, any use of the property that is not consistent with regulations in effect at the time of transfer shall be deemed to be a nonconforming use and all state laws and City and Linn County code provisions relating to nonconforming uses shall be applicable.
M. If the Board issues an order finding that an owner has a valid claim, the owner shall record a copy of the decision in the Recorder’s Office of Linn County. The decision must include a legal description of the subject property.
N. This chapter shall be interpreted in a manner consistent with Ballot Measure 37, passed November 2, 2004, and other implementing statutes or regulations and as interpreted by Oregon appellate courts. [Ord. 690 § 7, 2004.]
15.12.080 Conditions of approval – Revocation of decision.
A. The City Council may establish any relevant conditions of approval for compensation, should compensation be granted, or for any other action taken under this chapter.
B. 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 this section.
C. In the event the owner, or the owner’s successor in interest, fails to fully comply with all conditions of approval or otherwise does not comply fully with the conditions of approval, the City Administrator may institute a revocation or modification proceeding before the City Council under the same process for City Council review of a claim under this chapter. [Ord. 690 § 8, 2004.]
15.12.090 Ex parte contacts – Conflict of interest and bias.
The following rules govern any challenges to City Council participation in the review or hearings regarding compensation claims:
A. Any factual information obtained by a member of the Council outside the information provided by the City Administrator or City staff, or outside of the formal written comments process or hearing will be deemed an ex parte contact. A member of the City Council that has obtained any material, factual information through an ex parte contact must declare the content of that contact, and allow any interested party to rebut the substance of that contact. This rule does not apply to contacts between City staff and a member of the Council.
B. Whenever a member of the Council, or any member of their immediate family or household, has a financial interest in the outcome of a particular demand, that member of the City Council shall not participate in the deliberation or decision on that application.
C. All decisions on demands must be fair, impartial and based on the applicable review standards and the evidence in the record. Any member of the City Council who is unable to render a decision on this basis must refrain from participating in the deliberation or decision on that matter. [Ord. 690 § 9, 2004.]
15.12.100 Attorney’s fees.
If a demand under Ballot Measure 37 and this chapter is denied or not fully paid within 180 days of the date of filing a completed demand, the owner’s reasonable attorney’s fees and expenses necessary to collect compensation will be added as additional compensation, provided compensation is awarded to the owner. If such demand is denied, not fully paid, or other action taken under Ballot Measure 37, within 180 days of the date of filing a completed demand, and the owner commences suit or action to collect compensation, if the City of Brownsville is the prevailing party in such action, then the City of Brownsville shall be entitled to any sum which a court, including any appellate court, may adjudge reasonable as attorney’s fees. [Ord. 690 § 10, 2004.]
15.12.110 Availability of funds to pay claims.
Compensation can only be paid based on the availability and appropriation of funds for this purpose. [Ord. 690 § 11, 2004.]
15.12.120 Private right of action.
If the City Council’s approval of a claim by removing or modifying a land use regulation causes a reduction in value of other property located in the City of Brownsville, the affected party shall have a cause of action in state circuit court to recover from the claimant the amount of the reduction, and shall also be entitled to attorney’s fees. [Ord. 690 § 13, 2004.]
15.12.130 Applicable state law.
For all demands filed, the applicable state laws are those portions of ORS chapter 197 added or made a part of said chapter by Ballot Measure 37, passed on November 2, 2004, and/or as amended, modified or clarified by subsequent amendments or regulations adopted by the Oregon State Legislature, Oregon State Administrative Agencies or this chapter. Any demand that has not been processed completely under this section shall be subject to any such amendments, modifications, clarifications or other actions taken at the state level and this section shall be read in a manner so as not to conflict with such amendments, modifications, clarifications or other actions taken at the state level. [Ord. 690 § 14, 2004.]