Chapter 17.90
COMPENSATION CLAIMS
Sections:
17.90.060 Director report and city council review.
17.90.070 Burden of proof and record.
17.90.100 Recordation of waiver.
17.90.110 Reconsideration of waiver.
17.90.130 Availability of funds to pay demands.
17.90.150 Applicable state law.
17.90.010 Purpose.
The purpose of this section is to adopt a procedure for evaluating claims that are provided for under Ballot Measure 49, including claims that were filed under Measure 37. (Ord. 2008-03 § 1)
17.90.020 Definitions.
For purposes of this chapter, the definitions from Ballot Measure 49 apply, along with the following:
“Appraisal” means a written statement prepared by a person certified under ORS Chapter 674 or a person registered under ORS Chapter 308.
“Claim” means a written demand for compensation filed under Measure 49 and ORS 197.352, as in effect on and after the effective date of Measure 49.
“Claimant” means the person who has filed a claim. The claimant must be a current owner of the property that is the subject of the claim.
“Council” means the city council of Lincoln City.
“Department” means the Lincoln City planning and community development department, or successor entity designated by the council.
“Director” means the director of the Lincoln City planning and community development department or designee.
“Existing Lincoln City regulation” means a Lincoln City regulation that was enacted or adopted by Lincoln City with an effective date prior to December 2, 2004.
“Fair market value” as defined in Section 21(b) of Measure 49 means “the amount of money, in cash, that the property would bring if the property was offered for sale by a person who desires to sell the property but is not obligated to sell the property, and if the property was bought by a person who was willing to buy the property but not obligated to buy the property. The fair market value is the actual value of the property, with all of the property’s adaptations to general and special purposes. The fair market value of property does not include any prospective value, speculative value or possible value based upon future expenditures and improvements.”
“File” means to submit a document to Lincoln City.
“Interest” means the average interest rate for a one-year United States Government Treasury Bill on December 31st of each year of the period between the date the land use regulation was enacted and the date the claim was filed, compounded annually on January 1st of each year of the period.
“Land use application” means an application for a land use decision, a limited land use decision, or an expedited land division, as those terms are defined by ORS 197.015 and 197.360, or an application for a permit or zone change under ORS 227.160 through 227.187.
“Land use regulation” means a provision of Lincoln City’s comprehensive plan, zoning ordinance or land division ordinance that restricts the residential use of private real property zoned for residential use.
“Lincoln City Measure 37 waiver” means a decision by the city of Lincoln City that was made before December 6, 2007, under ORS 197.352 (2005) to modify, remove or not apply one or more
Lincoln City land use regulations to allow a claimant to use the property for a use that was permitted when the claimant acquired the property.
“Measure 37 waiver” means a decision by a city, a county, metro or the state of Oregon that was made before December 6, 2007, under ORS 197.352 (2005) to modify, remove or not apply one or more land use regulations to allow a claimant to use the property for a use that was permitted when the claimant acquired the property.
“Measure 49” means the ballot measure enacted by the voters on November 6, 2007.
“Property” means the private real property described in a claim and contiguous private real property that is owned by the same owner, whether or not the contiguous property is described in another claim, and that is not property owned by the federal government, an Indian tribe or a public body, as defined in ORS 192.410.
“Reduction in fair market value” means the difference, if any, in the fair market value of the property from the date that is one year before the enactment of the land use regulation to the date that is one year after the enactment, plus interest. (Ord. 2008-03 § 1)
17.90.030 Process for determining just compensation for Measure 37 claims filed on or before June 28, 2007.
The city shall follow the procedure set forth in Measure 49 to evaluate Measure 37 claims that were filed with the city on or before June 28, 2007. Vested rights claims relating to Measure 37 waivers shall be determined pursuant to Chapter 17.94 LCMC and Measure 49. (Ord. 2008-03 § 1)
17.90.040 Determination of compensation and delegation of authority for claims regarding land use regulations adopted after January 1, 2007.
The city council shall determine the validity of any claim filed under Measure 49 after June 28, 2007. (Ord. 2008-03 § 1)
17.90.050 Claims for compensation for claims regarding land use regulations adopted after January 1, 2007.
A. Filing. All claims shall be filed with the director in person or by U.S. Mail. The filing date is the date the claim is received by the city.
B. Submittal Requirements.
1. Claimant shall file a complete Measure 49 claim form provided by the department including:
a. The name and address of each owner and the date when the property was acquired;
b. The address, if any, and the assessor’s map and tax lot number of the property that is the subject of the claim;
c. A statement of the person’s desired use of the property for residential use;
d. A specific reference to each land use regulation enacted after January 1, 2007, that is alleged to restrict the person’s desired use of the property and the date the land use regulations were enacted;
e. The amount of reduction in fair market value alleged for each regulation at issue plus interest;
f. Whether a permit was issued for development of the property including a description of the use and the case file number;
g. Whether a claim was filed for the subject property with the state or any other government;
h. Any other information reasonably related to the review and processing of the claim as required by the director of the planning and community development department or as provided on the Measure 49 claim form; and
i. All information required to be submitted by Measure 49 and any subsequent amendments to Measure 49.
2. Claimant shall also provide:
a. Evidence of the acquisition date of the claimant, including the instrument conveying the property to the claimant and a report from a title company identifying the person in which title is vested and the claimant’s acquisition date and describing exceptions and encumbrances to title that are of record;
b. The written and notarized consent of all of the owners if there is more than one owner;
c. An appraisal showing the fair market value of the property one year before the enactment of each land use regulation and the fair market value of the property one year after the enactment. The actual and reasonable cost of preparing the claim, including the cost of the appraisal, not to exceed $5,000, may be added to the calculation of the reduction in fair market value under this subsection. The appraisal must: (i) be prepared by a person certified under ORS Chapter 674 or a person registered under ORS Chapter 308; (ii) comply with the Uniform Standards of Professional Appraisal Practice, as authorized by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989; and (iii) expressly determine the highest and best use of the property at the time the land use regulation was enacted; and
d. The applicable claim(s) review fee which shall be established by resolution of the city council.
3. Only one claim for each property may be filed for each land use regulation.
C. Claim Review Process. The city shall:
1. Deny a claim if:
a. It is not filed within five years from the date the land use regulation was enacted;
b. An application for a comprehensive plan or zoning amendment is approved for the subject property; or
c. The highest and best use of the property was not residential at the time the land use regulation was enacted;
2. Determine whether a claim is complete within 60 days after receiving the claim;
3. Notify the claimant of any missing information within 60 days after receiving the claim;
4. After providing notice of the missing information, deem the application complete if:
a. The claimant provides the missing information and the required fee; or
b. The claimant provides a written statement that some or all of the missing information will not be provided and the required fee;
5. Deem the application complete when filed if the city fails to notify the claimant of missing information within 60 days after receiving the claim;
6. Deem the application withdrawn if the claimant fails to provide the missing information, or fee, or a written statement that some or all of the missing information will not be provided within the time specified in the notice of missing information; and
7. Issue a final determination on a claim within 180 days from the date the claim is deemed complete. (Ord. 2008-03 § 1)
17.90.060 Director report and city council review.
A. Claims Review Process. Upon receipt of a filing, the director shall follow the claims review process under LCMC 17.90.050.
B. Review Criteria. The director shall determine whether to recommend to the city council to approve or deny the claim based on a demonstration by the owner that:
1. A Lincoln City land use regulation enacted after January 1, 2007, and after the property was acquired restricts the person’s desired residential use of the property;
2. The land use regulation has the effect of reducing the fair market value of the property;
3. The highest and best use of the property at the time the property was acquired is the person’s desired use of the property;
4. The land use regulation is not an exempt land use regulation under the terms of Measure 49;
5. The time limitations for filing a claim, as specified in Measure 49, have not been exceeded; and
6. All other requirements of law have been met.
C. Acquisition Date. The date the property was acquired is:
1. The date the claimant became the owner of the property as shown in the deed records of the county in which the property is located;
2. If there is more than one claimant for the same property under the same claim and the claimants have different acquisition dates, the acquisition date is the earliest of those dates;
3. If the claimant is the surviving spouse of a person who was an owner of the property in fee title, the claimant’s acquisition date is the date the claimant was married to the deceased spouse or the date the spouse acquired the property, whichever is later. A claimant or a surviving spouse may disclaim relief by using the procedure provided in ORS 105.623 through 105.649; and
4. If a claimant conveyed the property to another person and reacquired the property, whether by foreclosure or otherwise, the claimant’s acquisition date is the date the claimant reacquired ownership of the property.
5. A default judgment entered after December 2, 2004, does not alter a claimant’s acquisition date unless the claimant’s acquisition date is after December 2, 2004.
D. Notice of Hearing. If a claim is deemed complete and not rejected, the director shall draft a staff report and provide notice of opportunity to comment and to request a hearing.
1. Notice shall be sent to:
a. The claimant or representative and all owners of the subject property known to the city;
b. All property owners of record within 250 feet of the subject property;
c. The planning commission and city council and the recognized city neighborhood association in which the subject property is located; and
d. The Department of Land Conservation and Development.
2. The notice shall contain:
a. The address, if any, and the assessor’s map and tax lot number of the property that is the subject of the claim;
b. A statement of the person’s desired use of the property for residential use;
c. The number of dwellings, lots or parcels sought by the claimant, as well as the specific regulations alleged to restrict the use of the property;
d. A statement that the claim, staff report and any information submitted is available at the department for inspection or copying at cost and the phone number of a city staff contact;
e. A statement that all persons may submit written comments and/or request a hearing within 30 days from the date the notice is mailed;
f. A statement that if a hearing is requested, notice of hearing shall be by publication only, at least 20 days prior to the hearing;
g. A statement that judicial review of the final determination on the claim is limited to the written evidence and arguments submitted to the city;
h. A statement that prior to the end of the comment period, the claimant may request an additional seven days to respond to new evidence or to submit final arguments;
i. A statement that judicial review is available only for issues that are raised with sufficient specificity to afford the public entity an opportunity to respond; and
j. Any other information as deemed necessary by the director.
E. At least seven days prior to the city council initial action on the matter, the director shall prepare a staff report including a recommendation to approve or deny the claim, and including the appropriate relief to be granted, such as whether and how much to pay in compensation, or, in lieu thereof, a recommendation regarding the number of dwellings and lots that may be approved and the land use regulation(s) that should be waived. If in the opinion of the director the claim, if granted, has potential to significantly affect existing or future development in the city, the director may forward the claim and report to the planning commission and request the planning commission comment.
F. If no request for hearing is made, the claim shall be placed on the city council consent agenda for action.
G. If a request for hearing is made from a person entitled to notice or otherwise affected or aggrieved, the director shall schedule the matter for public hearing and publish notice of hearing at least 20 days prior to the hearing. No additional mailed notice is required.
H. In reviewing the claim, the city council shall consider such factors as the claimed reduction in fair market value; the nature of the proposed use or development, if any; and the impact of the proposed use or development including comments, if any, by the planning commission. The city shall consider comments on the record including any comments actually received by the conclusion of the comment period or public hearing, and such other information as the city deems relevant and material.
I. The city council shall issue a final decision after providing notice and a hearing within 180 days from the date the claim is deemed complete.
J. Final Decision. The city council may reject or approve the claim, and determine relief including payment of compensation, a waiver of regulations, or any combination of such remedies. The council may waive some regulations specified in the claim and deny waiver of others. The council is not limited to those regulations listed in the claim and may impose any conditions of approval that it deems reasonable and appropriate to protect the public interest. Failure to comply with any condition of approval is grounds for revocation of the approval of the compensation for the claim, grounds for recovering any compensation paid, and grounds for revocation of any other action taken under this chapter.
K. Notice of the council’s final decision shall be mailed to any person who submitted written comments prior to the close of the comment period or who appeared orally or in writing at the public hearing. The city shall send notice and a copy of the decision to the claimant. The notice shall contain a brief description of the decision including the relief granted. If relief includes a waiver, the description shall include a list of all regulations that the city council decided to not apply and the specific number of dwellings, lots or parcels authorized by the waiver. The notice shall also state that a claim has been, or may need to be, filed with the state. (Ord. 2008-03 § 1)
17.90.070 Burden of proof and record.
The claimant shall have the burden of proof on all matters under this chapter. The claimant bears sole responsibility for ensuring that the record before the city contains all information and evidence necessary to support the claim. The claimant shall be precluded from submitting information or raising new issues in any subsequent proceeding unless the claimant demonstrates that the information or issue could not reasonably have been entered into the record or raised before the city. (Ord. 2008-03 § 1)
17.90.080 Effect of waiver.
A. A decision of the city to waive a land use regulation shall in no way impact the property owner’s obligation to demonstrate compliance with any regulations not expressly provided for in the decision or to obtain any required approvals or permits.
B. A use authorized by a waiver has the legal status of a nonconforming use as provided by law. (Ord. 2008-03 § 1)
17.90.090 Procedural error.
No procedural defect in processing a claim shall invalidate any proceeding or decision unless the party alleging the error demonstrates prejudice to a substantial right. Inadvertent failure to provide notice or complete notice shall not be grounds for invalidating a decision. (Ord. 2008-03 § 1)
17.90.100 Recordation of waiver.
The city shall record a memorandum of any decision approving a claim for compensation, including any waiver of regulations, in the deed records for Lincoln County. (Ord. 2008-03 § 1)
17.90.110 Reconsideration of waiver.
The city council may, at its sole discretion, reconsider a decision on a claim if it appears that the decision is inconsistent with a subsequent court ruling, administrative rule or other change in the law relating to Measure 49. The decision to reconsider may be made without notice or hearing; but the decision on reconsideration shall be made only after notice and opportunity to be heard consistent with the requirements for claim and review provided under this chapter for council review, whichever is applicable. At the conclusion of the process, the council may affirm, modify, or revoke the earlier decision. If the council modifies or revokes a decision that resulted in payment of compensation, the council may institute an action for recovery. If the council modifies or revokes a decision to modify, remove, or not apply a land use regulation, it shall issue an order setting forth such remedy as it deems appropriate to protect the public interest. (Ord. 2008-03 § 1)
17.90.120 Appeals.
A. A person that is adversely affected by a final determination under this chapter may obtain judicial review of that determination as provided in Measure 49, under ORS 34.010 through 43.100. A person is adversely affected if the person is:
1. An owner of the property that is the subject of the final determination or;
2. A person who timely submitted written evidence, arguments or comments.
B. Judicial review of a decision under this chapter is:
1. Limited to evidence in the record at the time of the final determination; and
2. Available only for issues raised with sufficient specificity to afford an opportunity to respond. (Ord. 2008-03 § 1)
17.90.130 Availability of funds to pay demands.
Compensation can only be paid based on the availability and appropriation of funds for this purpose. (Ord. 2008-03 § 1)
17.90.140 Severability.
If any phrase, clause, or other part or parts of this chapter 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. (Ord. 2008-03 § 1)
17.90.150 Applicable state law.
For all claims filed with the city of Lincoln City, the applicable state law is Measure 49 as amended, modified or clarified by subsequent amendments or regulations adopted by the Oregon State Legislature or Oregon State Administrative Agencies. Any claim that has not been processed completely under this chapter shall be subject to any such amendments, modifications, clarifications or other actions taken at the state level and this chapter shall be read in a manner so as not to conflict with such amendments, modifications, clarifications or other actions taken at the state level. This chapter is adopted solely to address claims filed under the authority of those provisions of Measure 49. (Ord. 2008-03 § 1)