Chapter 2.44 REAL PROPERTY COMPENSATION

(3) “Costs,” for the purpose of defining costs which may be assessed against a claims processing deposit paid, include actual costs for reimbursing a hearings officer for time spent preparing for and conducting a hearing and time spent following the hearing preparing a final decision; actual charges for postage related to sending notices related to a claim; charges for the purchase of advertising noticing a public hearing; charges for making copies (determined according to the fee schedule in- effect upon filing of the claim); charges for recording documents with the county clerk; and charges authorized by the claimant in writing for research by county staff (determined according to the fee schedule in effect upon filing of the claim).

(4) “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 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.

(5) “Land use regulation” means any law or regulation or decision interpreting a law or regulation regulating the use of land or interest therein.

(6) “Measure 37” means that initiative petition passed by the people of Oregon November 2, 2004, and taking effect December 2, 2004.

(7) “Owner” means the person or persons or legal entity or entities in whom legal title is vested at the time of application. The transfer of property from an individual or entity to another legal entity, including but not limited to the creation of an estate, a trust, a corporation, a limited partnership or a limited liability company, through which the transferring owner retains ownership rights shall not constitute a change of ownership for purposes of interpreting this chapter.

(8) “Possessory interest” means the intent and right of a person to occupy and/or exercise control over a particular plot of land. A possessory interest is distinguished from an interest in the title to property, which may not include the right to immediately occupy the property. A long-term lease is an example of a possessory interest.

(9) “Reversionary interest” means the remnant of an estate that the grantor holds after granting a life estate to another person.

(10) “Substantial investment” or “substantial effort” means when, based upon the following factors, none of which shall be determinative or necessarily required, the land has been improved, developed or committed to development in a manner that would not be permitted except for a Measure 37 waiver: the legal commitment of the use of land as represented by the filing of a plat or similar type of land dedication to a use not allowed other than pursuant to a Measure 37 claim approval or waiver; the investment of funds toward the development of land consistent with a Measure 37 approval, such as, but not limited to, surveying, land site preparation or other improvement in anticipation of development not permitted except pursuant to a Measure 37 waiver; or any other similar effort reflecting a commitment by the property owner to develop the land in a manner that would not be permitted except pursuant to a Measure 37 waiver.

(11) “Vested right” means when substantial investment or substantial effort has occurred. (Ord. 185, 2006)

2.44.020 General application.

(1) Effective the second day of December, 2004, an owner of property located in Crook County may file a timely claim for compensation in the manner prescribed by this chapter if the owner of said property can demonstrate that any of the following circumstances exist:

(a) When, as a result of a land use regulation enacted by the Crook County court, the value of the private real property in which one or more landowners have title or interest has been reduced below the value that said private real property would have, had the use of the property not been restricted by such enactment.

(b) When, as a result of a land use regulation enforced by the Crook County planning department, the Crook County planning commission or the Crook County court, the value of the private real property in which one or more landowners have title or interest has been reduced below the value that said private real property would have, had the use of the property not been restricted by such enforcement.

(2) It is the policy of Crook County to accept filing of claims derived from discretionary legislative acts and policies of the county or from regulatory actions arising out of enforcement of those acts and policies. Whenever such acts derive from nondiscretionary enactment or enforcement of the laws, regulations or decisions of the state of Oregon or the United States of America, it is the policy of the county to deny such claims for lack of jurisdiction.

(3) In recognition that all land use planning authority of Crook County ultimately derives from the laws and policies of the state of Oregon, it is the policy of the county to advise individuals seeking compensation under this chapter to file simultaneous claims against the state of Oregon in accordance with procedures established by law. (Ord. 185, 2006)

2.44.030 Certain regulations exempt from claims for compensation.

No claim for compensation shall be recognized if such claim arises as a result of one of the following:

(1) A land use regulation restricting or prohibiting activities commonly and historically recognized as public nuisances under common law. The definition of nuisance shall be narrowly construed in favor of a finding of compensation under this chapter;

(2) A land use 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 land use regulation required in order to comply with federal law;

(4) A land use regulation restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing. Nothing in this subsection, however, is intended to affect or alter rights provided by the Oregon or United States Constitutions;

(5) A land use regulation 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. (Ord. 185, 2006)

2.44.040 Timely filing required.

No claim for compensation shall be honored unless such claim is timely filed. A timely filing occurs:

(1) When a demand for compensation is presented to the county in writing prior to December 2, 2006, based upon an assertion that a reduction in value resulted from an enactment of legislation, a land use decision or an enforcement of a land use regulation commenced by the Crook County planning department, Crook County planning commission or the Crook County court prior to December 2, 2004; or

(2) When a demand for compensation is presented to the county in writing based upon a claim which asserts that a reduction in value resulted as a result of enactment of legislation, a land use decision or an enforcement commenced by Crook County after December 2, 2004, and not later than two years from the effective date of the legislation, final order of the county in a land use proceeding or date upon which enforcement was commenced which the claimant asserts resulted in the claimed reduction of the value; or

(3) Within two years of the date that a land use regulation is first applied as an approval criteria to an application submitted by the claimant, if such date shall be later than provided in subsection (1) or (2) of this section. (Ord. 185, 2006)

2.44.050 Claims are severable.

The county court or a hearings officer may sever claims whenever such claims are determined to be related to multiple unrelated properties or multiple or unrelated owners or multiple or unrelated enactments or enforcement of land use regulations. When claims are severed the court or hearings officer may require payment of additional filing fees for processing additional claims. (Ord. 185, 2006)

2.44.055 Prejudice does not attach to withdrawn or pended claim.

A claimant may withdraw his claim at any time during a Measure 37 proceeding by notifying in writing the official designated by the county court of such desire. The withdrawal of a claim does not prejudice the right to refile such claim if the claim is otherwise still timely. A claimant may also pend a claim at any time during a Measure 37 proceeding by notifying in writing the official designated by the county court of such desire. Consideration of a claim once pended may be resumed at any point when the claim is still timely upon written request to said official, but any such consideration shall be noticed again to neighboring property owners and to the public. When a pended claim is reopened for consideration the hearings officer has the discretion to begin proceedings anew or to enter into the record the proceedings previously undertaken in the matter of the pended claim. (Ord. 185, 2006)

2.44.060 Filing requirements.

A claim for compensation may be filed with the legal counsel of Crook County or with such other official as the county court shall designate. Such claims shall not constitute applications for land use permits. The claimant shall bear the burden of demonstrating that applicant’s claim is legitimate. The applicant shall meet this burden by presenting empirical evidence, which shall include the following:

(1) A written petition including a description of the property or properties in question, identified by township, range, parcel and tax lot number.

(2) A list of all current owners of the property or properties, along with their names and addresses. In addition, such list shall include every person or entity holding a lien against, or a security interest in, the property and every person or entity holding a future, contingent, or other interest of any kind in the property. In the case of a corporate owner, the address and phone number of the registered agent shall be provided. Included with such list shall be a statement that each owner concurs in the application and its contents. The application must be signed by all owners whose collective interests amount to fee simple title. One owner or other person must be designated as the claimant who shall serve as contact for the purposes of receiving all communication, correspondence and notices pertaining to the application. The statement must be notarized.

(3) A current assessor’s map or survey clearly delineating the entire property or properties that comprise the subject of the claim, together with the street address and assessor’s map and lot references of each property.

(4) A preliminary title report or other report acceptable to the county and a title company doing business in Crook County for the subject property or properties disclosing all interests and encumbrances of record. Such report(s) shall have been issued no more than 30 days prior to filing the application. In addition, the applicant shall provide a sworn statement indicating any other interests and encumbrances against the property, including but not limited to leases and encroachments, of which the claimant is aware or may have reason to believe exist or indicating that the title report is inclusive of all such claims.

(5) A statement by the applicant describing those legislative enactments or land use enforcement proceedings the applicant believes have restricted his use of his real property or any interest therein and have reduced the fair market value of the property or any interest therein.

(6) A description by the applicant of how the applicant’s use of his real property or interest therein has been restricted and/or a statement regarding the reduction in fair market value the applicant has experienced as result of the legislative enactment or legislative proceeding in question.

(7) A statement by the applicant of the amount of compensation the applicant is requesting.

(8) A statement by the applicant as to any nonmonetary relief the applicant would accept in lieu of monetary compensation.

(9) An appraisal prepared in accordance with USPAP standards by an appraiser properly licensed and currently registered in the state of Oregon or a broker’s price opinion or similar statement prepared by a real estate broker properly licensed and currently registered in the state of Oregon, which opines as to:

(a) The net amount the subject property has been reduced in value based upon the restriction identified and what portion, if any, of the reduction in fair market value is attributable to the enactment or enforcement of the regulation in question;

(b) A statement explaining how the regulations restrict the use of the property and why the regulation has the effect of reducing the value of the property or properties upon which the restriction is imposed.

(10) A copy of any other documents upon which the claimant intends to rely in support of his claim.

(11) A minimum deposit of $900.00 or such other amount as the Crook County court shall at least annually establish. Such fee or deposit shall be used to cover costs associated with the evaluation of such claims. The processing fee shall be paid at the time the claimant initially files. The fees collected from compensation claims shall be deposited into a “claims fund” which the county court shall establish and which shall be used to pay expenses associated with processing of claims. Moneys shall not be used for any purpose other than the administration of the compensation claims system. If at any time a hearings officer determines that the costs associated with hearing a particular claim will exceed the amount of the deposit paid to date, the hearings officer may order deposit of additional funds with the county to cover associated costs. A final decision shall not be recorded with the county clerk in a claims proceeding until a claimant has paid any such funds owing.

(12) A claim for compensation after filing shall be reviewed by county counsel, or such official as the county court may designate, who shall determine the following:

(a) Whether the claim was timely filed;

(b) Whether the claimed is barred;

(d) Whether the required processing fee has been paid.

(13) A claim is deemed “filed” on the date it is filed with the office of the legal counsel of Crook County (or such other entity as the county court may designate to receive claims) regardless of whether the filing requirements are met. However, no claim shall be processed until county counsel or other official designated by the court (hereinafter “the reviewing official”) shall determine that all information required by this section has been submitted.

(14) Copies obtained from the county planning department or county clerk of written land use approval or a deed establishing that the applicant’s real property has been approved as a “legal parcel” as that term is defined under ORS 215.010. (Ord. 185, 2006)

2.44.070 Review of claims submitted.

(1) Once a claim has been submitted and reviewed, if information is found to be missing, the reviewing official shall advise the claimant in writing what material has been omitted, and what material is required in order to begin processing the claim. Claimant shall also be advised that claimant may withdraw his claim in writing within 30 days (if such 30 days shall expire upon a weekend or holiday, the deadline shall be the next regular business day). If claimant withdraws his claim within 30 days, then claimant’s deposit shall be returned less any processing costs incurred as of the date of withdrawal. If claimant elects not to withdraw his claim, then the deposit paid by claimant shall be held by the county for application toward the deposit which may be required at a future time when the claimant submits a completed application. If no such application has been received within two years of the date of initial filing, claimant’s deposit shall be returned less any claims processing costs incurred.

(2) Upon determining that the filing requirements have been met, the reviewing official shall notify the presiding officer of the county court or his designee that a claim has been timely filed and deemed complete. Once claims have been deemed “timely filed” and complete, the county shall make a final determination and issue a final ruling regarding compensation due within 180 days.

(3) Upon receipt of a notice from the review official that a claim has been timely filed and is complete, the presiding officer shall schedule a hearing before the Crook County court or assign the claim to a hearings officer. The court or the hearings officer shall schedule a hearing on the claim not later than 45 days after the date on which the claim was deemed “timely filed” and complete or on such later date as may be mutually acceptable to the claimant and the county. (Ord. 185, 2006)

2.44.080 Procedure for hearing claims.

The following procedure shall govern the conduct of a compensation hearing:

(1) The hearing shall be conducted at a time and place designated by the county court or appointed hearings officer. Public notice in a newspaper of record or in another manner allowed by the Oregon public records law of the time and place of the hearing shall be given at least 48 hours in advance of the hearing. Written notice shall be mailed at least seven days in advance of the hearing by the county via regular mail to all owners of property abutting the property which is the subject of the claim. Notice shall be deemed given on the date the notice is mailed.

(2) Continuances of such hearings may be granted by the presiding officer of the court or by the hearings officer if such continuances are, in the opinion of the presiding officer or hearings officer, deemed necessary.

(3) Hearings shall be conducted in a location where the public may observe the proceedings.

(4) A tape recording of the hearing shall be made and recorded with the county clerk. Written minutes of the proceeding may be substituted for the tape recording at the discretion of the presiding officer of the court or the hearings officer.

(5) Accommodation shall be made upon request for persons with disabilities.

(6) The county court or hearings officer shall in the course of the hearing allow the applicant to present such evidence as he believes is necessary to demonstrate that a legislative action of the county court or that an enforcement of a land use regulation by a county body or official has restricted the use of his real property or any interest therein and has had the effect of reducing the fair market value of the property or any interest therein. The applicant or his representative may present expert testimony or call witnesses to support his case. All testimony submitted for the consideration of the court or hearings officers shall be entered into and retained by the county as a part of the permanent record. The presiding officer of the county court or the hearings officer may limit the time allowed for the applicant to make his presentation.

(7) Following the applicant’s presentation, the presiding officer of the court or the hearings officer shall call upon the Crook County planning director or his designee or other county staff to present a response to the applicant’s case. The presiding officer of the court or the hearings officer may limit the time allowed for the planning director’s and/or county staff’s presentation.

(8) The presiding officer of the court or the hearings officer shall permit other public testimony regarding the application. The presiding officer of the court or the hearings officer may limit the time allowed for such testimony.

(9) Following public testimony, the applicant shall be granted time for rebuttal. The presiding officer of the court or the hearings officer may limit the time allowed for such testimony.

(10) Whenever the presiding officer of the court or the hearings officer deems necessary, he may continue the hearing.

(11) Upon conclusion of testimony, the members of the court or the hearings officer shall consider the evidence received and within 60 days of the final hearing or as soon as may be practical thereafter announce the amount of compensation, if any, to which the applicant is entitled due to the fact that the value of the subject property has been reduced by the enactment or enforcement of the land use regulation as asserted by the claimant; or a decision that the lost value to which the applicant would otherwise be entitled may be restored by modifying, removing or not applying the land use regulation or enforcement action which was the proximate cause of the loss of value. Such decision shall be set forth in writing and shall summarize the evidence and testimony presented, briefly describe how the court or the hearings officer evaluated the evidence, indicate the amount of compensation which in the judgment of the court or hearings officer the applicant is due, and such other matters as the court or the hearings officer may deem necessary.

(12) In any such case where the county court is the tribunal hearing the application for compensation, and the county court determines that compensation is due, the court may, in lieu of compensation, consider whether to waive the contested regulations or enforcement actions.

(13) Notwithstanding any procedural requirement herein, nothing shall preclude the county court or a hearings officer, prior to receiving testimony, from dismissing a claim for lack of jurisdiction.

(14) The authority of a hearings officer is limited to deciding whether land use regulations should not be applied in a future land use proceeding or to grant compensation when such compensation would be in an amount less than $5,000. If the hearings officer determines that compensation in an amount greater than $5,000 is due and the hearings officer determines that it is not in the interests of the county to remove a regulation which has the effect of reducing value, the hearings officer shall notify the county court of the same, and the county court shall schedule further proceedings in the matter. In cases where a hearings officer considers the application and determines that compensation in excess of $5,000 is due, the hearings officer may in lieu of compensation decide to waive such regulation or enforcement action.

(15) In cases where compensation is determined to be due and the county court elects not to modify, remove or not to apply the land use regulation or enforcement action which was the proximate cause of the loss in value, then the presiding officer of the Crook County court shall cause to be paid to the applicant the value in question out of such funds as the county court may have appropriated for such purpose or out of such other funds as may be available to the county. Payment shall be made within 160 days of the date written demand for compensation was originally filed with Crook County.

(16) All decisions of a hearings officer shall be reduced to writing and forwarded to the county court. The county court shall ratify, modify or overturn such decisions.

(17) Upon final approval of a decision by the county court or a hearings officer, the county shall cause to be recorded in the deed records of the county such decision, and shall return any unused deposit to the claimant. Prior to the return of the deposit, the cost of recording shall be deducted from the deposit paid by the applicant. A decision is final only when the final decision has been recorded in the office of the county clerk. (Ord. 185, 2006)

2.44.090 Special provisions related to property in family ownership.

Whenever a property has been transferred through inheritance or acquisition among members of the same family and enactments or enforcements of land use regulations subsequent to the date of acquisition by the current owner in a familial line have reduced the value of that property, then the policy of the county, in lieu of compensation which might otherwise be required, is to determine that that property shall be subject only to those enactments or enforcements of land use regulations which were in effect on the date upon which the current owner in a familial line acquired the subject property. (Ord. 185, 2006)

2.44.100 Special considerations related to claims arising from land division.

When a claim for compensation is based on a claimant’s assertion that at the time of acquisition of a subject property the claimant, solely by virtue of the size of his property, would have had the right to partition or subdivide said property, and when as the result of subsequent enactment or enforcement of a land use regulation such right has been extinguished, then notwithstanding any other requirement of this chapter, the claimant’s assertion that the value of his or her property had been reduced is accepted as valid and the claimant may forego any further requirement related to demonstration of a reduction in value. (Ord. 185, 2006)

2.44.110 Timely consideration.

(1) All proceedings, whether before the county court or an appointed hearings officer, shall be completed within 170 days of the date upon which a complete application is received.

(2) On the one-hundred-seventieth day after a claim has been filed, if the claimant has not yet received a final determination from the county court or a hearings officer, the claimant may submit a petition to county court through its presiding officer for a final decision regarding whether the enactment or enforcement of a land use regulation still applies to the property or properties which are the subject of his claims. Upon receipt of such a claim, the county court shall within 10 days of receipt of such a claim hear the petition and issue a final decision, but nothing herein shall require the county court to grant compensation or to waive an enactment or enforcement of a land use regulation.

(3) The burden of proof remains with the claimant throughout the proceeding to show that the claimant has experienced the alleged reduction in value of claimant’s property as a result of an enactment or enforcement of a land use regulation. The failure of the applicant to submit evidence or fees as required by this chapter is deemed a failure to meet the burden of proof and may result in denial by the county of claimant’s application. Upon judicial review, such failure may be deemed a failure by the claimant to exhaust his available administrative remedies and may therefore be grounds for dismissal of the claim. (Ord. 185, 2006)

2.44.120 Land use authority retained.

(1) Nothing herein shall be construed to repeal or modify those laws and regulations of the state of Oregon or Crook County relating to land use. An applicant who applies for compensation and is granted a waiver of an enactment or land use enforcement in lieu of compensation is not exempt from land use regulations, but an enactment or land use regulation which has been waived allowing a particular use by a particular applicant and recorded against a particular property shall not be applied as a condition of approval in a subsequent land use proceeding filed by that applicant to undertake that use upon that property.

(2) A property which has been improved by an owner who has obtained a waiver allowing a use which would not otherwise have been allowed due to an enactment or enforcement of a land use regulation may be transferred with the improvement to a new owner, but this privilege shall not be construed to create authority to transfer the right to improve to a new owner. (Ord. 185, 2006)

2.44.130 Transfer of waivers.

Waivers of enactments or land use regulations, when granted in lieu of compensation, are not transferable to other properties. The right to obtain a waiver does not survive the sale or transfer of property if an application for waiver was not made, awarded and recorded by the owner who was eligible to obtain such waiver; however, a use shall not be deemed nonconforming so long as any current owner who was also an owner at the time a waiver was granted remains an owner of the subject property. A waiver properly recorded in the deed records of the county survives the sale or transfer of a property to new ownership, if one or both of the following conditions is or are met:

(1) The owner who filed the original claim for compensation subsequently conveys the subject property but in doing so retains a possessory or reversionary interest in said property.

(2) The owner who filed the original claim for compensation engages in substantial effort or substantial investment with respect to the subject property. (Ord. 185, 2006)

2.44.140 Tax status not a part of this chapter.

The decision of the county court or a hearings officer in any proceeding under this chapter shall not determine the taxable status of an individual property, but the right to make such determination shall be reserved to the county assessor in consultation with the Oregon Department of Revenue and shall be in accordance with the laws and regulations of the state of Oregon. (Ord. 185, 2006)

2.44.150 Effective date of land use decisions.

For purposes of interpreting this chapter, a land use decision becomes final when signed by the county planning director, planning commission chair or Crook County court members. If multiple land use decisions were issued as a result of appeals, then the latest proceeding in the matter shall be considered the final decision. (Ord. 185, 2006)

2.44.160 Appointment and compensation of hearings officer(s).

At any time following passage of the ordinance codified in this chapter, the county court may appoint as hearings officers one or more persons whom the court deems knowledgeable in matters of law, local government or the land use regulations of the state of Oregon. Hearings officers shall serve at the pleasure of the county court. Cases shall be assigned to hearings officers by the presiding officer of the Crook County court. (Ord. 185, 2006)

2.44.170 Application of law.

This chapter (including any future amendments thereto) shall be applied in accordance with the standards set forth in this chapter and subsequent amendments at the time of filing of a claim except as otherwise provided by judicial decree or enactment of legislation by the General Assembly or the people of Oregon. (Ord. 185, 2006)

2.44.180 Indemnification may be required to proceed further.

Repealed by Ord. 153 Amd. 2. (Ord. 185, 2006)

2.44.185 Measure 37 waiver.

Before a claimant may use property under a Measure 37 waiver, the claimant must obtain a waiver for that use of the property from both the county and the state, if a state waiver is required. (Ord. 153 Amd. 2 § 2, 2007)

2.44.190 Notice of application for Measure 37 claims.

After February 20, 2007, the county shall provide written notice to the Department of Land Conservation and Development of all applications for Measure 37 claims filed with the county after February 20, 2007. Such notice shall be mailed to the Department’s Salem office at least 10 calendar days prior to any evidentiary hearing on the submitted claim. (Ord. 153 Amd. 2 § 3, 2007)