Chapter 2.30
REAL PROPERTY COMPENSATION
Sections:
2.30.030 Claim filing procedures.
2.30.040 Time for completing claim response.
2.30.050 City Administrator investigation and recommendation.
2.30.060 Planning Commission review and recommendation.
2.30.070 City Council public hearing.
2.30.080 City Council action on claim.
2.30.090 Duration or transfer of waiver.
2.30.010 Purpose.
This chapter is intended to implement the provisions added to ORS chapter 195 by Ballot Measure 37 (November 2, 2004). These provisions establish a prompt, open, thorough and consistent process that enables property owners an adequate and fair opportunity to present their claims to the City, and they preserve and protect limited public funds while establishing a record of the City’s decision capable of circuit court review. [Ord. 906 § 1, 2012; Ord. 822 § 1, 2005.]
2.30.020 Definitions.
As used in this chapter, the following words and phrases mean:
“City” means the City of Harrisburg.
“City Administrator” means the City Administrator of the City of Harrisburg, or his or her designee.
“Claim” means a claim filed under Ballot Measure 37.
“Claimant” means the property owner making a claim, or their designee so long as written authorization is provided to the City by the property owner.
“Exempt land use regulation” means a land use regulation that:
a. Restricts or prohibits activities commonly and historically recognized as public nuisances under common law;
b. Restricts or prohibits activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations;
c. Is required in order to comply with Federal law;
d. Restricts or prohibits the use of property for the purpose of selling pornography or performing nude dancing; or
e. Was enacted prior to the date of acquisition of the property by the owner or a family member of the owner who owned the subject property prior to acquisition or inheritance by the owner, whichever occurred first.
“Family member” includes the wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent, or grandchild of the owner of the property, an estate of any of the foregoing family members, or a legal entity owned by any one or combination of these family members or the owner of the property.
“Land use regulation” includes:
a. Any statute regulating the use of land or any interest therein;
b. Administrative rules and goals of the Land Conservation and Development Commission;
c. Local government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances; and
d. Statutes and administrative rules regulating farming and forest practices.
“Owner” means the present owner of the property, or any interest therein.
“Valid claim” means a claim submitted by the owner of real property that is subject to a land use regulation adopted or enforced by the City that restricts the use of the private real property in a manner that reduces the fair market value of the real property. [Ord. 822 § 2, 2005.]
2.30.030 Claim filing procedures.
1. A claim must be filed on a form approved by the City.
2. A person seeking to file a claim under this chapter must be the present owner of the property that is the subject of the claim at the time the claim is submitted. The claim shall be filed with the City Administrator’s office, or another City office if so designated by the City Administrator.
3. The claimant shall have the burden of proof to show the validity of the claim. The claimant shall therefore provide information that will include:
a. The name(s), address(es) and telephone number(s) of all owners, and anyone with any interest in the property, including lien holders, trustees, renters, lessees, and a description of the ownership interest of each;
b. The address, tax lot, and legal description of the real property that is the subject of the claim, together with a title report issued no more than 30 days prior to the submission of the claim that reflects the ownership interest in the property, or other documentation reflecting sole ownership of the property by the claimant, and the date the property was acquired;
c. The use which the property owner wanted or wants to apply to the property and information showing that the use would have been allowed at the time the property owner acquired the property;
d. The current land use regulation(s) that allegedly restricts the use of the real property and allegedly causes a reduction in the fair market value of the subject property;
e. The amount of the claim, based on the alleged reduction in value of the real property supported by an appraisal by an appraiser licensed by the Appraiser Certification and Licensure Board of the State of Oregon; and
f. Copies of any leases or covenants, conditions and restrictions (CC&Rs) applicable to the real property, if any, that impose restrictions on the use of the property. [Ord. 822 § 3, 2005.]
2.30.040 Time for completing claim response.
1. The City shall have 180 days from the date the claim was filed to render a decision on it. A claim shall be considered to have been filed when the City Administrator has determined that all information required by HMC 2.30.030(3) has been provided and all fees paid. However, if the City fails to notify the claimant within 60 business days that additional information or fees are required, then the claim will be considered to have been filed as of the date the claim and fees were submitted.
2. Notwithstanding a claimant’s failure to provide all of the information required by HMC 2.30.030(3), the City may review and act on a claim. [Ord. 906 § 1, 2012; Ord. 822 § 4, 2005.]
2.30.050 City Administrator investigation and recommendation.
Within two months after the claim has been filed, the City Administrator shall make written findings and shall either deny the claim for reasons stated, or forward the claim to the Planning Commission. If the City Administrator denies the claim, the claimant may appeal the decision to the Planning Commission if a written notice of appeal is filed with the City of Harrisburg within one month following the denial. [Ord. 822 § 5, 2005.]
2.30.060 Planning Commission review and recommendation.
If a claim is forwarded to the Planning Commission for review, the Planning Commission shall review the information submitted and shall make a recommendation to the City Council that the claim be:
1. Denied;
2. Investigated further;
3. Declared valid, and waive or modify the land use regulation, or compensate the claimant upon completion of an appraisal; or
4. Evaluated with the expectation of the City acquiring the property by condemnation. [Ord. 822 § 6, 2005.]
2.30.070 City Council public hearing.
1. The City Council shall conduct a public hearing before taking final action on a recommendation from the Planning Commission. Notice of the public hearing shall be provided to the claimant, to owners and occupants of property within 300 feet of the perimeter of the subject property, and neighborhood groups or community organizations officially recognized by the City Council whose boundaries include the subject property.
2. To the extent allowed by law, the recommendation of the Planning Commission and the City Council’s evaluation of the claim may occur in an executive session. [Ord. 822 § 7, 2005.]
2.30.080 City Council action on claim.
1. Upon conclusion of the public hearing, and prior to the expiration of 180 days from the date the claim was filed, the City Council shall:
a. Determine that the claim does not meet the requirements of Measure 37 and this chapter, and deny the claim; or
b. Adopt a resolution with findings therein that supports a determination that the claim is valid and either direct that the claimant be compensated in an amount set forth in the resolution for the reduction in value of the property, or remove, modify or direct that the challenged land use regulation not be applied to the property.
2. The City Council’s decision to waive or modify a land use regulation or to compensate the owner shall be based on whether the public interest would be better served by compensating the owner or by removing or modifying the challenged land use regulation with respect to the subject property. [Ord. 822 § 8, 2005.]
2.30.090 Duration or transfer of waiver.
1. Any waiver or modification of land use regulations granted by this chapter shall be utilized within three years of the waiver or modification. Any waiver or modification not utilized within three years shall be void and of no further consequence.
2. No waiver or modification of a land use regulation granted by this chapter shall be transferred to a third party. Any attempted transfer of the rights granted by the City under this chapter shall result in the termination of the waiver or modification granted. [Ord. 822 § 9, 2005.]
2.30.100 Processing fee.
A fee to be set by a City Council resolution shall be charged for the processing of a claim. A claim shall not be considered to have been filed until the required fee has been paid. The fee shall be in addition to any costs the City may incur to process a claim, such as fees paid to an engineer or attorney, and advertising and mailing costs. [Ord. 822 § 10, 2005.]
2.30.110 Appeal procedures.
Any decision under this chapter is not a land use decision. Appeal of any final decision of the City made hereunder shall be to the Linn County circuit court. [Ord. 822 § 11, 2005.]
2.30.120 Severance clause.
If any phrase, clause, or other part or parts of this chapter are found to be invalid by a court of competent jurisdiction, the remaining phrases, clauses and parts shall remain in full force and effect. [Ord. 822 § 12, 2005.]