Chapter 3.28
REVIEW OF DEMANDS FOR COMPENSATION (BALLOT MEASURE 37)
Sections:
3.28.030 Prefiling conference.
3.28.050 Demand review process.
3.28.060 Conditions of approval, revocation of decision and transfer of approval rights.
3.28.070 Ex parte contacts, conflict of interest and bias.
3.28.080 Attorney fees on delayed compensation.
3.28.090 Availability of funds to pay claims.
3.28.100 Applicable state law – No independent rights created by this chapter.
Prior legislation: Ord. 2000-39.
3.28.010 Purpose.
The purpose of this chapter is to accomplish the following regarding demands for compensation under ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004:
Process demands for compensation quickly, openly, thoroughly, and consistently with the law; enable present real property owners making demands for compensation to have an adequate and fair opportunity to present their demands to the city’s decision-maker; provide the city’s decision-maker with the factual and analytical information necessary to adequately and fairly consider demands for compensation, and take appropriate action under the alternatives provided by law; preserve and protect limited public funds; preserve and protect the interests of the community by providing for public input into the process of reviewing demands; and establish a record of decisions capable of withstanding legal review. [Ord. 2005-16 § 1 (2.14.010)].
3.28.020 Definitions.
For purposes of this chapter the following definitions shall apply:
“Appraisal” means a written statement 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” additionally means a written statement prepared by an appraiser holding the MAI qualification, and demonstrated by written certificate.
“Demand” 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 after the requirements for making a demand under this chapter are fulfilled by the owner of real property.
“Exempt land use regulation” means:
1. A regulation restricting or prohibiting activities commonly and historically recognized as public nuisances under common law, including EPMC Titles 8 and 9, as amended from time to time, and the criminal laws of Oregon and the city of Eagle Point;
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.
“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 regulation” means any comprehensive plan, zoning ordinance, land division ordinance or transportation ordinance of the city of Eagle Point.
“Owner” means the present owner of real property that is the subject of the demand for compensation, or any interest therein. The owner must be 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 any private real property or interest therein. 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.
“Reduction in value” means the difference in the fair market value of the property before and after enactment, enforcement or application of a land use regulation. [Ord. 2005-16 § 1 (2.14.020)].
3.28.030 Prefiling conference.
A. Before submitting a demand for compensation, the owner must schedule and attend a prefiling conference with the administrator to discuss the demand. The prefiling conference shall follow the procedure set forth by the administrator and may include a filing fee, and notice to neighbors, other organizations and agencies. The filing fee shall be set by council resolution.
B. To schedule a prefiling conference, the owner must contact the administrator and pay the appropriate conference fee. The prefiling conference is for the owner to provide a summary of the owner’s demand to the administrator, and for the administrator to provide information to the owner about regulations that may affect the demand. The administrator may provide the owner with a written summary of the prefiling conference within 10 days after it is held.
C. The administrator is not authorized to settle any demand at a prefiling conference. Any omission or failure by staff to recite to an owner all relevant applicable regulations will not constitute a waiver or admission by the city.
D. A prefiling conference is valid for six months from the date it is held. If no demand is filed within six months of the conference, the owner must schedule and attend another conference before the city will accept a demand. The administrator may waive the prefiling requirements if, in the administrator’s opinion, the demand does not warrant that step. [Ord. 2005-16 § 1 (2.14.030)].
3.28.040 Demand requirements.
A. Form, Completeness, Completeness Review, Extension and Tolling of ORS chapter 197, as Amended by Ballot Measure 37, Passed November 2, 2004, 180-Day Period.
1. A demand shall only be submitted and accepted for review upon forms established by the administrator. A demand shall consist of all materials required by this chapter. A demand will not be accepted until found to be complete by the administrator after all materials required by this chapter have been submitted.
2. The administrator shall conduct a completeness review within 15 days after submittal of the demand and shall advise the owner, in writing, of any material remaining to be submitted. The owner shall submit the material needed for completeness within 30 days of the written notice that additional material remains to be submitted. If the owner fails to provide the materials necessary to make the demand complete within the 30-day period, the demand shall not be accepted for filing.
3. The 180-day period required to pass prior to any cause of action being available to owner in circuit court specified in ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004, shall only commence on the date the administrator deems the demand complete, and accepts it for filing. The administrator shall note the date of completeness and filing, in writing, upon the demand.
4. The owner may request an extension for filing a complete demand. A request for an extension or continuance shall be deemed a waiver of the commencement of the 180-day period required to pass prior to any cause of action being available to the owner in circuit court specified in ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004, and this chapter.
B. Information and Other Matters Required to be Submitted as Part of the Demand. A demand shall be for a single property and shall be submitted on forms established by the administrator, and shall consist of all materials required by this chapter. A demand will not be accepted for filing without all of the following information:
1. Fee. An application fee to be paid in advance of acceptance for filing to cover the costs of completeness review and demand processing. This fee shall be established by council resolution. The demand processing fee shall be refunded if the city or an appellate body determines that just compensation should be paid. The city administrator shall maintain a record of the city’s cost in processing a claim, including the costs of obtaining the information required by this chapter which a property owner does not provide to the city. Following final action by the city on the claim at the local level, the city administrator shall send to the property owner a bill for the actual costs, including staff and legal costs, that the city incurred in reviewing and acting on the claim. If the property owner does not pay the amount due after credit for any application fee received by the city, then the city shall pursue collection, including filing a lien on the property. Should action be instituted to recover such fees and costs, the prevailing party in any such action shall be entitled to reasonable attorneys’ fees from the nonprevailing party.
2. Form. A completed demand form.
3. Identification of Owner. Identification of the name, physical address, street address and phone number of the owner. If the applicant is not the owner, this information must also be provided for the owner and authorization to act on behalf of the owner must be provided.
4. Property Description. A legal description of the property as well as a common address for the property.
5. Proof of Present Property Ownership. Proof, acceptable to the administrator, that the property is in the exclusive fee simple ownership of the owner or that the owner has the consent of all owners in the property. The name and mailing address of all owners other than the owner making the demand must be provided.
6. Nearby Property Owner Information. The names and addresses of all owners of property within 300 feet of the property.
7. Listing of Nearby Owned Property. Identification of any other property owned by the owner within 300 feet of the boundary of the property.
8. Title Report. A title report, including the title history, a statement of the date the owner acquired ownership of the property, and the ownership interests of all owners. The title report must also specify any restrictions on use of the property unrelated to the land use regulation including, but not limited to, any restrictions established by covenants, conditions and restrictions (CC&Rs), other private restrictions, or other regulations, restrictions or contracts.
9. Copy of Existing Regulation. A copy of the land use regulation that the owner making the demand claims restricts the use of the property, or interest therein, that has had the effect of reducing the fair market value of the property, including the date the owner claims the land use regulation was first enacted, enforced or applied to the property.
10. Copy of Prior Regulations. A copy of the land use regulation in existence, and applicable to the property, when the owner became the owner of the property, and a copy of the land use regulation in existence immediately before the regulation that was enacted or enforced or applied to the property, that the owner claims restricts the use of the property and, the owner claims, caused a reduction in fair market value due to the regulation described in subsection (B)(9) of this section being more restrictive.
11. Appraisals. A copy of a written appraisal or appraisals by an appraiser, qualified as such in the state of Oregon, indicating the amount of the alleged reduction in the fair market value of the property by showing the difference in the fair market value of the property before and after enactment, enforcement or application of the land use regulation described in subsection (B)(9) of this section, and explaining the rationale and factors leading to that conclusion.
12. Narrative. The owner shall provide a narrative describing the history of the owner and/or family member’s ownership in the property, the history of the relevant land use regulations applicable to the demand, and how the enactment, enforcement or application of the land use regulation restricts the use of the property, or any interest therein, and has the effect of reducing the fair market value of the property, or any interest therein.
13. Statement Regarding Exceptions. A statement by the owner making the demand of why the following exceptions to the requirement for compensation for restrictions or prohibitions on activities or uses found in ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004, do not apply:
a. Commonly and historically recognized public nuisances under common law;
b. Protection of public health and safety;
c. Regulations required to comply with federal law;
d. Use of property for the purpose of selling pornography or performing nude dancing; or
e. The subject land use regulation was enacted prior to the date of the acquisition of the property by the owner, or prior to acquisition by a family member of the owner who owned the subject property prior to the acquisition or inheritance by the owner (if “family member” status is claimed, it must also be addressed in the title report required by subsection (B)(8) of this section).
14. Statement of the Owner’s Understanding of the Effect of Any Modification, Removal or Nonapplication of Land Use Regulation. A statement by the owner explaining their understanding of what effect a modification, removal or nonapplication of the land use regulation would have on the potential development of the property, stating the greatest degree of development that the owner believes would be permitted on the property if the identified land use regulation were modified, removed or not applied.
15. Copies of Prior Permit Applications and Description of Enforcement and/or Application Actions by the City. Copies of any land use actions, development applications or other relevant applications for permits that have previously been filed in connection with the property and the action taken. Any such actions that represent the required enforcement and/or application of the land use regulation that are prerequisites to making a demand must be described and identified as such.
16. Site Plan and Drawings. A copy of the site plan and drawings related to the expected use of the property should the land use regulation be modified, removed or not applied in a readable/legible eight-and-one-half by 11-inch format. In the event the expected use of the property involves land divisions (i.e., partitions or subdivisions), then the applicant shall also supply a survey map showing the proposed uses on the subject property.
17. Statement of Relief Sought. A statement of the relief sought by the owner. [Ord. 2005-16 § 1 (2.14.040)].
3.28.050 Demand review process.
A. The administrator shall assess any demand for compensation and make a recommendation to the city council on the disposition of the demand.
B. The administrator shall mail notice of the demand to the owner and to all owners of record of property, and to all owners of property within 300 feet of the property that is subject of the notice, as listed on the most recent property tax assessment roll where such property is located. Additional mailed notice shall be sent to the Oregon Department of Land Conservation and Development, Oregon Department of Justice, and such others as the city may designate by council resolution.
C. The administrator’s notice under subsection B of this section shall:
1. State the basis of the demand, the amount of the compensation sought and the regulation that causes the compensation to be alleged to be due;
2. Identify the property by the street address or other easily understood geographical reference;
3. State that persons noticed may provide written comments on the demand, and provide the date written comments are due or, if a hearing has been requested, the date, time and location of the hearing. Include a general explanation of the requirements for submission of written comments or, if a hearing is to be held, the requirements for submission of testimony and evidence and the procedure for conduct of hearings;
4. Identify the city representative and telephone number to contact to obtain additional information; and
5. State that a copy of the demand and the supporting documents submitted by the owner are available for inspection at no cost, and that copies will be provided at reasonable cost.
D. Before the administrator may make a recommendation on the demand, the administrator shall provide notice of the demand in accordance with the provisions of subsections B and C of this section.
E. Written comments regarding a demand may be submitted to the administrator. Any such comments must be received by the administrator within 14 days from the date identified in subsection C of this section. The owner shall have an additional seven days after the deadline set in subsection C of this section to respond to any written comments received by the administrator.
F. The administrator shall hold a public hearing on the demand if requested by:
1. The applicant in the initial written demand; or
2. Another person entitled to notice under subsection B of this section; provided, that person makes the request within seven days from the date provided under subsection (C)(3) of this section.
If the owner requests a hearing, the initial notice under subsections B and C of this section shall provide the date, time and location of the hearing. If a hearing is requested by the other persons entitled to notice, a new notice by the administrator shall be issued to the remaining persons entitled to notice giving the date, time and location of the hearing.
G. If a hearing is conducted:
1. All documents or evidence relied upon by the owner shall be submitted to the administrator as a part of the demand. Persons other than the owner may submit documents or evidence at the hearing.
2. Any staff report used at the hearing shall be available at least seven days prior to the hearing.
3. When the administrator reopens a record to admit new evidence or testimony, any person may raise new issues that relate to the new evidence, testimony or criteria for decision-making that apply to the matter at issue.
4. The failure of a person entitled to notice to receive notice as provided in this section shall not invalidate such proceedings if the city can demonstrate by affidavit that such notice was given. The notice provisions of this section shall not restrict the giving of notice by other means, including posting, newspaper publication, radio and television.
H. The administrator shall make a recommendation, applying the standards of ORS chapter 197 as amended by Ballot Measure 37, passed November 2, 2004, to the city council based on all of the information presented. Should compensation be recommended by the administrator, the recommendation to the city council may include establishing any relevant conditions for compensation. The administrator will consider the city council criteria for decision and may recommend the city council take any of the actions set forth in subsection K of this section.
I. The administrator may, in the administrator’s discretion, retain the services of an appraiser to appraise the property and evaluate the demand to assist in determining the validity of a demand.
J. Within 21 days from the date of the close of the period for written comments or the conclusion of the hearing, if one is requested, the administrator shall make a recommendation to the city council as to whether compensation shall be paid, the amount of compensation to be paid, and/or whether any specific land use regulation should be modified, removed or not applied to the property.
1. A copy of the administrator’s recommendation and notice of the date, time, and place of the city council meeting at which the recommendation will be reviewed shall be sent by mail to the owner, and to all individuals that provided written comments and/or participated in the administrator’s hearing, not less than seven days before the scheduled city council meeting, provided a mailing address was previously provided to the administrator as part of the review or hearing process.
K. Review of the Administrator’s Recommendation and Decision on the Demand by the City Council. Review by the city council shall be on the record of the administrator’s review or hearing, and limited to the completed demand filed with the administrator, together with any and all documents and testimony submitted in connection with any review or hearing before the administrator. Any staff report by the administrator used at the city council review shall be available at least four days prior to the city council meeting. The city council shall consider written and/or oral arguments based on the record of the administrator’s review or hearing made by the owner, and any party entitled to receive notice of the city council review. In making its decision, the city council will consider the standards of ORS chapter 197 as amended by Ballot Measure 37, passed on November 2, 2004; the benefit(s) accruing to the public arising as a result of application of the regulation; and the burden to the public in paying compensation to the owner(s), taking into consideration the available financial resources of the city. The city council may take, but is not limited to, taking any one or more of the following actions on a demand:
1. Deny the demand based on, but not limited to, any 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 if that is required for compensation, or 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 ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004;
g. The land use regulation in question is not an enactment of the city;
h. The city has not taken final action to enact, enforce or apply the land use regulation to the property;
i. The owner is not entitled to compensation under ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004, 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 in the record, subject to the availability and appropriation of funds for that purpose;
3. Modify the regulation;
4. Remove the regulation;
5. Not apply the regulation;
6. Take such other actions as the city council deems appropriate consistent with ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004.
L. The owner shall bear the burden of proof relating to the demand and entitlement to just compensation. The city shall bear the burden of proof to show that the regulation is exempt under ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004. The standard of proof shall be by a preponderance of the evidence.
M. This chapter shall be interpreted in a manner consistent with ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004, and other implementing statutes or regulations and as interpreted by Oregon Appellate Courts.
N. The final decision on a demand shall be made by the city council. After review, the city council shall, under the standards of ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004, and the factors enumerated in subsection K of this section, 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 decision shall be sent by mail to the owner and to each individual or entity that participated in the administrator or city council review process, provided a mailing address was provided to the city as part of the review process. [Ord. 2005-16 § 1 (2.14.050)].
3.28.060 Conditions of approval, revocation of decision and transfer of approval rights.
A. The city council may establish any relevant conditions of approval for compensation, should compensation be granted, or for any other action taken under EPMC 3.28.050(K).
B. Failure to comply with any condition of approval is grounds for revocation of the approval of the compensation for the demand, grounds for recovering any compensation paid and grounds for revocation of any other action taken under EPMC 3.28.050(K).
C. In the event the owner fails to fully comply with all conditions of approval or otherwise does not comply fully with the conditions of approval, the city may institute a revocation or modification proceeding before the city council under the same process for administrator and city council review of a demand under this chapter. [Ord. 2005-16 § 1 (2.14.060)].
3.28.070 Ex parte contacts, conflict of interest and bias.
The following rules govern any challenges to the administrator’s or member of the city council’s participation in the review and recommendation motion, or hearings regarding demands:
A. Any factual information obtained by the administrator or a member of the city council outside the information provided by city staff, or outside of the formal written comments process or hearing will be deemed an ex parte contact. The administrator or 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 the administrator or member of the city council.
B. Whenever the administrator or a member of the city council, or any member of their immediate family or household, has a financial interest in the outcome of a particular demand or lives within the area entitled to notice of the demand, that administrator or 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 administrator or 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. 2005-16 § 1 (2.14.070)].
3.28.080 Attorney fees on delayed compensation.
If a demand under ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004, 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 ORS chapter 197, as amended by Ballot Measure 37, passed November 2, 2004, within 180 days of the date of filing a completed demand, and the owner commences suit or action to collect compensation, if the city is the prevailing party in such action, then city shall be entitled to any sum which a court, including any appellate court, may adjudge reasonable as attorney’s fees. In the event the city is the prevailing party and is represented by in-house counsel, the prevailing party shall nevertheless be entitled to recover reasonable attorney’s fees based upon the reasonable time incurred and the attorney fee rates and charges reasonably and generally accepted in Eagle Point, Oregon, for the type of legal services performed. [Ord. 2005-16 § 1 (2.14.080)].
3.28.090 Availability of funds to pay claims.
Compensation can only be paid based on the availability and appropriation of funds for this purpose. [Ord. 2005-16 § 1 (2.14.090)].
3.28.100 Applicable state law – No independent rights created by this chapter.
For all demands filed, the applicable state law is those portions of ORS chapter 197 added or made a part of such 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 or Oregon State Administrative Agencies. Any demand 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 demands filed under the authority of those provisions of ORS chapter 197 added or made a part of such chapter by Ballot Measure 37, passed November 2, 2004. No rights independent of such provisions are created by adoption of this chapter. [Ord. 2005-16 § 1 (2.14.110)].