Chapter 1.30
REVIEW OF APPLICATIONS FOR COMPENSATION UNDER ARTICLE I, SECTION 18 OF THE CONSTITUTION OF OREGON
Sections:
1.30.020 Application for variance or compensation.
1.30.030 Form and contents of application.
1.30.040 Application completeness.
1.30.050 Review of application – Appraisal by city – Report to city council.
1.30.060 City council hearing – Notice.
1.30.080 Conditions of decision – Revocation of decision – Transfer of approval rights.
1.30.090 Judicial review of council decision – Attorneys’ fees.
1.30.100 Availability of funds to pay claims.
1.30.010 Definitions.
For the purposes of this chapter, the following definitions shall apply:
(A) “Affiliated owner” means any person who shares ownership, control, lease or management of the property.
(B) “Appraisal” means a written statement as to reduction in value of the property prepared by an appraiser licensed by the Appraiser Certification and Licensure Board of the State of Oregon pursuant to ORS Chapter 674. In the case of commercial or industrial property, the term “appraisal” means a written statement prepared by an appraiser holding the MAI qualification, as demonstrated by written certificate.
(C) “City” means the city of Cornelius, Oregon.
(D) “Exempt regulation” means: (1) a regulation which imposes requirements under federal law, to the minimum extent required by federal law; (2) a regulation prohibiting the use of a property for the purpose of selling pornography, performing nude dancing, selling alcoholic beverages or other controlled substances, or operating a casino or gaming parlor; or (3) a regulation governing historically and commonly recognized nuisance laws, including but not limited to Chapters 8.10. 8.15, 8.20, 9.05 through 9.20, 15.25, and 15.30 CMC, as amended from time to time, and the criminal laws of the state of Oregon and the city of Cornelius.
(E) “Person” means any natural person, association, firm, partnership, corporation or other entity having a legal or equitable interest in real property in the city.
(F) “Property” means any real property including any structure built or sited on the property, aggregate and other removable minerals, and any forest product or other crop grown on the property. It includes only a single parcel or contiguous parcels in single ownership. It does not include contiguous parcels or parcels not contiguous that are under different ownerships.
(G) “Property owner” or “owner” means a person or persons who are the sole fee simple owner of the property, or all affiliated owners whose interests add up to a fee simple interest in property, comprising all recorded interests in property, including co-owners, holders of less than fee simple interests, leasehold holders and security interest holders.
(H) “Regulation” means any law, rule, ordinance, resolution, goal or other enforceable enactment of the city of Cornelius.
(I) “Restricts the use of property” means prohibiting a particular use of the property or making that use only permissible under certain conditions. Standards that regulate the form of development, how a structure must be constructed, or how grading or fill is to be conducted, such as yard setback requirements, height limitations, erosion control measures and building code standards are not restrictions on the use of property. Regulations requiring the payment of or setting fees are not restrictions on the use of property. [Ord. 819 § 1 (Exh. A), 2000; Code 2000 § 1.400.]
1.30.020 Application for variance or compensation.
(A) An owner of private real property in the city may apply for a variance from a regulation, if the owner believes that without such a variance the owner will be entitled to compensation under Oregon Constitution Article I, Section 18, subsections (a) through (f) (2000).
(B) Alternatively, owners of private real property who believe they are or will be entitled to compensation under Oregon Constitution Article I, Section 18, subsections (a) through (f), as the result of the enactment or enforcement of a regulation, may apply for that compensation. [Ord. 819 § 1 (Exh. A), 2000; Code 2000 § 1.410.]
1.30.030 Form and contents of application.
(A) Application. An application for a variance or compensation under CMC 1.30.020 shall be in writing and filed with the city manager on a completed application form established by the manager. An application must include the following:
(1) A legal description of the private real property as to which the owner(s) are applying for a variance or compensation, including the common address and either a legal metes and bounds description or a county assessor’s description of the property;
(2) The name, address, and telephone number of each owner, affiliated owner and security interest holder (if any) in the private real property, together with the signature of each such owner or the signature of an authorized representative thereof. If all owners and affiliated owners do not sign the application, they shall sign waivers of the right to compensation;
(3) The date the owner(s) acquired ownership of the private real property;
(4) A title report from a title insurer in the state of Oregon, current within 30 days prior to the application date, verifying the ownership of the private real property;
(5) A reference to the specific regulation as to which the owner is applying for a variance or for compensation, including the date the regulation was adopted, enforced or applied, and why the regulation is not a requirement of federal law;
(6) A description of the manner in which the regulation in question reduces the fair market value of the property for which compensation or a variance is sought;
(7) A statement of the use of private real property that is proposed by the applicant. Compliance with this provision requires submission of a copy of any land use or development permit application which is presently pending or has previously been filed before the city and denied;
(8) The amount the owner claims as compensation due under Oregon Constitution, Article I, Section 18, subsections (a) through (f), in the event a variance from the regulation is not granted;
(9) An application fee, in an amount established by the city council, to reasonably compensate the city for actual costs involved in the processing, evaluation and review of the application; and
(10) An appraisal report meeting the requirements set forth below. If the claim is for more than $50,000, two appraisal reports must be submitted.
(B) Appraisal Report Requirements. Any appraisal report offered to support an application for compensation pursuant to this chapter shall meet the following specific requirements:
(1) The appraisal must expressly note all existing infrastructure limitations and value the property without an assumption that any public infrastructure or services are present or that any such infrastructure will be improved or sustained at governmental or taxpayer expense or through discretionary governmental action;
(2) The appraisal’s consideration of the reduction in fair market value shall be limited to the difference in the fair market value of the property before and after the adoption, enforcement or application of the regulation including the net cost to the landowner of an affirmative obligation to protect, provide, or preserve wildlife habitat, natural areas, wetlands, ecosystems, scenery, open space, historical, archeological or cultural resources, or low-income housing but shall not include consideration of any other damage that the regulation may have upon the property in question or any other property owned by the applicant;
(3) The appraisal must expressly consider the effect of Article I, Section 18, subsections (a) through (f) on the availability of other real property, including the extent to which the supply of such other real property is or will be increased thereby;
(4) The appraisal must be in writing and signed by an appraiser with the qualifications established in this chapter. [Ord. 819 § 1 (Exh. A), 2000; Code 2000 § 1.420.]
1.30.040 Application completeness.
(A) An application submitted to the city shall not be deemed filed therewith until it is complete in accordance with all the provisions of CMC 1.30.030. Within 15 business days following tender of an application to the city, the city manager or his/her designee shall review the application to determine whether it is complete and ready for filing.
(B) In the event that the city manager determines that the application is incomplete, the applicant will be notified of the deficiencies not later than the fifteenth business day after its initial submission. The tendered application shall not be deemed filed until such time as the deficiencies have been corrected.
(C) The application shall have noted upon it the date when it was deemed complete and accepted for filing. If the city manager fails to advise the applicant of any deficiencies within the time required, the application shall be deemed complete on the date of its original tender to the city. [Ord. 819 § 1 (Exh. A), 2000; Code 2000 § 1.430.]
1.30.050 Review of application – Appraisal by city – Report to city council.
(A) The city manager, following filing of a complete application under this chapter, shall review the application and shall make a recommendation to the city council as to the disposition of the application. The recommendation may include a determination as to whether a variance or waiver of the application of a regulation would avoid the owner’s being entitled to compensation. Any such written report shall not be deemed a decision of the manager with respect to the property which is the subject of the application.
(B) The city manager may, in his/her discretion, retain the services of an appraiser to independently appraise the property, evaluate the application or to provide an independent analysis of the appraisal(s) accompanying the application. The cost of such appraisal or independent analysis shall be paid by the applicant(s) and be assessed at the time of the submission of the application. In the event such appraisal or independent analysis is not performed by the city, any assessment of a portion of the application fee to cover the cost of such appraisal or analysis shall be refunded to the applicant(s). [Ord. 819 § 1 (Exh. A), 2000; Code 2000 § 1.440.]
1.30.060 City council hearing – Notice.
(A) At or about the time the city manager prepares the report required by this chapter, he/she shall schedule a public hearing before the city council on the application.
(B) Written notice of the city council hearing shall be provided at least 10 days in advance of the hearing date, to: (1) the applicant(s); (2) the owners of record of property within 100 feet from the exterior boundary of the private real property which is the subject of the application, as set forth on the most recent property tax assessment roll; and (3) any neighborhood association recognized by the city and whose boundaries include the private real property which is the subject of the application.
(C) The notice shall include the following information:
(1) The date, time and place of the city council hearing;
(2) The name of the applicant(s);
(3) The common address or other easily understood geographic reference to the property;
(4) The regulation in relation to which the applicant is applying for either a variance or compensation;
(5) The amount of compensation claimed by the applicant;
(6) The name of a city representative to contact and the telephone number where additional information may be obtained;
(7) A description of how testimony may be submitted for consideration by the city council.
The failure of the city to give notice as provided in this section or the failure of any person to receive said notice shall not invalidate any action of the city council under this chapter.
(D) Conduct of Hearing. The city council shall conduct a hearing on the application. The hearing shall provide the applicant and persons entitled to notice of the hearing the opportunity to present evidence on the matter which evidence may be presented either orally or in writing. Irrelevant, immaterial or unduly repetitious evidence shall be excluded. No rebuttal by any person offering testimony, either testifying at the hearing is allowed. The council, through its presiding officer, may set such time limits or other reasonable restrictions on the submission of testimony and evidence as it deems necessary or appropriate.
(E) Criteria for Decision on Application. In determining whether to grant a variance, waive enforcement of the regulation or award compensation, the city council shall consider: (1) the restriction imposed by the regulation on the applicant’s property and the reduction in fair market value of the property when compared to the applicant’s proposed use; (2) the benefit(s) accruing to the public arising as a result of application of the regulation; and (3) the burden to the public of paying compensation to the applicant(s), taking into consideration the available financial resources of the city. [Ord. 819 § 1 (Exh. A), 2000; Code 2000 § 1.450.]
1.30.070 City council action.
(A) The city council shall, by majority vote of those present, determine whether compensation is to be awarded, the amount of the compensation if so awarded, whether any variance or waiver of enforcement will fully or partially eliminate an award of compensation and/or whether to grant a waiver of enforcement. The city council may also impose conditions to the approval of any compensation awarded.
(B) The city council may take one or more of the following actions:
(1) Deny the claim based on any one or more of the following findings:
(a) The regulation does not restrict the use of the private real property;
(b) The fair market value of the property is not reduced by the adoption, enforcement or application of the regulation;
(c) The claim was not timely filed;
(d) The claimant is not the current property owner, or was not the property owner at the time the regulation was first adopted, enforced or applied;
(e) The regulation is an exempt regulation as defined in this chapter;
(f) The regulation in question is not an enactment of the city;
(g) The city has not taken final action to adopt, enforce or apply the regulation to the property;
(h) The claimant is not entitled to compensation under Article I, Section 18, 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.
(3) Waive or suspend enforcement of the regulation.
(4) Grant a variance from the application of the regulation.
(5) Modify the regulation.
(6) Take such other actions as the council deems appropriate consistent with Article I, Section 18, Oregon Constitution.
(C) The city council’s decision shall be reduced to writing and signed by the presiding officer. Not more than seven business days following the council hearing, a copy of the city council decision shall be sent, via first class mail, to the applicant(s) and to each person who participated in the city council hearing; provided, that person provided a mailing address to the city as part of the hearing process. The failure of the city to provide a copy of its decision to any person under this section shall not invalidate any action of the city council. [Ord. 819 § 1 (Exh. A), 2000; Code 2000 § 1.460.]
1.30.080 Conditions of decision – Revocation of decision – Transfer of approval rights.
(A) Failure to comply with any condition of approval imposed as a condition for receipt of compensation is grounds for revocation of the award of compensation. In the event an owner/applicant, or their successor-in-interest, fails to comply with all conditions of approval or otherwise fails, refuses or neglects to comply fully with the council’s decision, the city may institute a revocation or modification proceeding under this chapter.
(B) Unless otherwise stated in the city’s decision, any claim approved under this chapter runs with the property and is transferred with ownership of the property. Any conditions, time limits or other restrictions imposed with a claim decision bind all subsequent owners of the property.
(C) Any variance or enforcement waiver granted pursuant to this chapter shall be automatically deemed void and of no further force and effect from and after the date of the city council decision, without any action on the part of the city in the event of subsequent modifications to or court interpretations of Oregon Constitution, Article I, Section 18.
(D) Any variance or enforcement waiver granted an owner(s) under this chapter shall not be deemed to nor will it create any protectable property interest or “investment-backed expectation” on the part of an applicant in its continuation. The city shall have the right to compel the property owner(s) or their successors-in-interest to comply with any regulation in effect at the time of the city’s decision on the application, in the event of any subsequent modification or interpretation of Oregon Constitution, Article I, Section 18 occurs as a result of court decision, legislative action or initiative.
(E) Any city payment of compensation to an owner under this chapter is subject to immediate repayment by the owner(s) in the event that an appellate court invalidates the amendments to Oregon Constitution Article I, Section 18, occurring as a result of Ballot Measure 7 (2000) in whole or in part via a final, nonappealable judgment. Liability for such repayment shall be a joint and several obligation of all owners and/or affiliated owners. Any repayment not made within 30 days of the entry of said appellate judgment, the obligation shall begin to accrue interest at the legal rate of interest until fully paid. In addition, the city manager may file a lien for the repayment of the compensation on the property in question.
(F) If the city council has granted a variance or waiver and the owner nevertheless files a court action seeking compensation and if a final court decision determines that the extent of the waiver was not sufficient to avoid the owner’s being entitled to compensation, then the extent of the variance or waiver shall be deemed to be the extent necessary to avoid the owner’s being entitled to compensation for purposes of the award of attorneys’ fees and expenses, effective as of the date of the city council’s decision. [Ord. 819 § 1 (Exh. A), 2000; Code 2000 § 1.470.]
1.30.090 Judicial review of council decision – Attorneys’ fees.
(A) Any judicial review of the city council’s action under this chapter shall be taken consistent with the terms of ORS 34.010 to 34.100 (writ of review), and not otherwise.
(B) If a claim for compensation under Oregon Constitution Article I, Section 18 is denied or not fully paid within 90 days of the date of filing of a complete application, applicants’ reasonable attorneys’ fees and expenses necessary to collect compensation shall be added as additional compensation provided compensation is awarded to applicant(s). If a claim for compensation is denied or not fully paid within 90 days of a complete application, and the applicant(s) commence suit or action to collect compensation, if the city is the prevailing party in such action, then city shall be entitled to reasonable attorneys’ fees and expenses. [Ord. 819 § 1 (Exh. A), 2000; Code 2000 § 1.480.]
1.30.100 Availability of funds to pay claims.
Compensation can only be paid based on the availability and appropriation of funds for this purpose. [Ord. 819 § 1 (Exh. A), 2000; Code 2000 § 1.490.]