Chapter 3.20
BALLOT MEASURE 37 CLAIMS PROCESSING
Sections:
3.20.030 Claim filing procedures.
3.20.040 City administrator investigation and recommendation.
3.20.050 City council public hearing.
3.20.060 City council action on claim.
3.20.070 Alternative claim resolution.
3.20.080 Application fee – Reimbursement of costs.
3.20.090 Real property compensation – Private cause of action.
3.20.010 Purpose.
This real property compensation ordinance is intended to implement the provisions added to ORS Chapter 197 by Ballot Measure 37 (November 2, 2004). These provisions establish a prompt, open, thorough and consistent process that enables property owners an adequate and fair opportunity to present their claims to the city; preserves and protects limited public funds; and establishes a record of the city’s decision capable of circuit court review. (Ord. 1016 § 1, 2005)
3.20.020 Definitions.
As used in this chapter, the following words and phrases mean:
A. “City administrator” means the city administrator of the city of Rainier or his or her designee.
B. “Claim” means a claim filed under Ballot Measure 37.
C. “Exempt land use regulation” means 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, and pollution control regulations;
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; or
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.
D. “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 any one or combination of these family members or the owner of the property.
E. “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;
4. Metropolitan service district regional framework plans, functional plans, planning goals and objectives; and
5. Statutes and administrative rules regulating farming and forest practices.
F. “Owner” means the present owner of the property, or any interest therein.
G. “Valid claim” means a claim submitted by the owner of real property that is subject to a land use regulation adopted or enforced by the city that restricts the use of the private real property in a manner that reduces the fair market value of the real property. (Ord. 1016 § 2, 2005)
3.20.030 Claim filing procedures.
A. A person seeking to file a claim under this chapter 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 city office if so designated by the city administrator.
B. A claim shall be submitted on an application form provided by the city and shall include but not be limited to:
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, 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 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 the claimant, and the date the property was acquired;
3. The current land use regulation(s) that allegedly restricts the use of the real property and allegedly causes a reduction in the fair market value of the subject property;
4. The amount of the claim, based on the alleged reduction in value of the real property supported by an appraisal by an appraiser licensed by the Appraiser Certification and Licensure Board of the state of Oregon; and
5. Copies of any leases or covenants, conditions and restrictions (“CC&Rs”) applicable to the real property, if any, that impose restrictions on the use of the property.
C. Notwithstanding a claimant’s failure to provide all of the information required by subsection B of this section, the city may review and act on a claim. (Ord. 1016 § 3, 2005)
3.20.040 City administrator investigation and recommendation.
A. Following an investigation of a claim, the city administrator shall forward a recommendation to the city council and Rainier planning commission that the claim be:
1. Denied;
2. Investigated further;
3. Declared valid, and waive or modify the land use regulation, or compensate the claimant upon completion of an appraisal; or
4. Evaluated with the expectation of the city acquiring the property by condemnation.
B. If the city administrator’s recommendation is that a claim be denied, and no elected official informs the city administrator within 14 days that the official disagrees, then the city administrator may deny the claim. If an elected official objects, then the city administrator shall wait an additional seven days to see whether another elected official objects to the proposed denial. If so, then the city administrator shall schedule a work session with the city council. If not, the city administrator may deny the claim. (Ord. 1016 § 4, 2005)
3.20.050 City council public hearing.
The city council shall conduct a public hearing before taking final action on a recommendation from the city administrator. Notice of the public hearing shall be provided to the claimant, to owners and occupants of property within 300 feet of the perimeter of the subject property, and neighborhood groups or community organizations officially recognized by the city council whose boundaries include the subject property. Based upon unforeseeable and special issues particular to the subject property the city council may at the time of scheduling the public hearing increase the public hearing notification area beyond the 300-foot area previously described. (Ord. 1016 § 5, 2005)
3.20.060 City council action on claim.
A. Upon conclusion of the public hearing, and prior to the expiration of 180 days from the date the claim was filed, the city council shall:
1. Determine that the claim does not meet the requirements of Measure 37 and this chapter, and deny the claim; or
2. Adopt a resolution with findings therein that supports a determination that the claim is valid and either direct that the claimant be compensated in an amount set forth in the resolution for the reduction in value of the property, or remove, modify or direct that the challenged land use regulation not be applied to the property.
B. The city council’s decision to waive or modify a land use regulation or to compensate the owner shall be based on whether the public interest would be better served by compensating the owner or by removing or modifying the challenged land use regulation with respect to the subject property. (Ord. 1016 § 6, 2005)
3.20.070 Alternative claim resolution.
A. As an alternative to a Measure 37 claim, a current owner of real property who seeks the waiver of a land use regulation may apply to the city administrator for said waiver on a form that the city shall provide for such purpose. Upon receipt of an application for waiver pursuant to this section, the city administrator shall schedule a meeting with the property owner and appropriate city representatives to review the owner’s claim. If the city administrator concludes that the property owner is entitled to some form of compensation or waiver pursuant to the provisions of Measure 37, city staff will work with the applicant in an effort to agree upon the minimum waiver which will allow the property owner his or her desired use while minimizing the negative impact on other properties within the city.
B. If the property owner and the city administrator come to an agreement concerning the property owner’s entitlement to a Measure 37 waiver and the terms thereof, the owner shall thereafter file a formal Measure 37 claim pursuant to RMC 3.20.030 which thereafter will be presented to the city council as a joint recommendation of the property owner and the city administrator.
C. If the city council approves the alternative claim resolution, the application provided in RMC 3.20.030 shall be waived and the private right of action provided in RMC 3.20.090 shall not apply to any subsequent use of the subject property in conformance with the terms of the alternative claim resolution. (Ord. 1016 § 7, 2005)
3.20.080 Application fee – Reimbursement of costs.
A. If a claim is denied and ultimately determined to be invalid, the claimant shall pay, as an application fee, an amount necessary to reimburse the city for all of the city’s costs incurred in processing the claim. The sum shall include, but not be limited to, the city’s attorney’s fees, expert witness fees, appraisal fees, employee costs, and any and all other sums necessary to completely reimburse the city for expenses incurred in processing or defending against an invalid claim. If the costs remain unpaid 90 days after the city provides a detailed invoice demanding reimbursement of costs, a lien for those costs shall be recorded in the city lien dockets for the property that was the subject of the claim.
B. If the alternative claims resolution process set forth in RMC 3.20.070 results in a joint recommendation for approval that is not approved by the city council, the city will waive reimbursement of any fee/costs incurred prior to the decision of the city council.
C. If a claim is determined valid the city shall waive all costs and reimburse the initial application fee. (Ord. 1016 § 8, 2005)
3.20.090 Real property compensation – Private cause of action.
If the city council’s waiver of a land use regulation causes a reduction in value of other property located in the city, the owner(s) of the other property shall have a cause of action in the appropriate Oregon circuit court to recover from the owner(s) (of the property subject to the demand) in the amount of such reduction in value. A person who recovers for a reduction in value of property under this section shall also be entitled to recover attorney’s fees and costs from the owner(s) (of the property subject to the demand). This section does not create a cause of action against the city of Rainier nor does it create a cause of action against the owner of any property who obtains a waiver pursuant to the alternative claim resolution procedure set forth in RMC 3.20.070. (Ord. 1016 § 9, 2005)