Chapter 14.04
MEASURE #37 IMPLEMENTATION (2004)
Sections:
14.04.030 Submittal of claims.
14.04.060 Conditions on waivers or modifications of regulations.
14.04.070 Amendments to applicable state law.
14.04.100 Processing of motions to amend previously approved waiver.
14.04.010 Purpose and intent.
A. The purpose of this chapter is to:
1. Provide implementation procedures for the submittal and processing of claims under ORS Chapter 197, as amended by Ballot Measure 37, passed by voters in the general election on November 2, 2004;
2. Promote the timely, orderly, efficient and consistent evaluation and processing of claims;
3. Ensure that the county is able to adequately and fairly review such claims and make a decision that balances the interests of the property owner in relation to the best interests of the citizens of the county, while protecting limited public financial resources;
4. Adopt a Ballot Measure 37 claims process that is compatible with other local ordinances.
B. This chapter is not intended in any way to expand the rights or remedies available to property owners under Ballot Measure 37 or any other law.
C. This chapter does not in any way amend or repeal the Jefferson County comprehensive plan, zoning ordinance, subdivision ordinance, statewide planning goals or any other local or state land use law, statute, regulation or policy.
D. To the extent the statute is modified, any provisions of this chapter which are inconsistent with the modification shall be void upon the effective date of such modification.
E. Repealed by Ord. O-58-06.
F. A waiver or modification of a land use regulation as defined herein does not relieve the owner of any requirement to file a land use application under the county comprehensive plan and zoning ordinance or to obtain any required land use permits.
G. A decision approving a waiver or modification of a land use regulation shall be in lieu of monetary compensation and shall preclude and bar the land owner from filing a claim for compensation under Ballot Measure 37.
H. The board specifically finds that Jefferson County has insufficient funds available to pay any compensation claims, and therefore declines to allocate any funds for this purpose. For this reason, the board of commissioners will only consider Ballot Measure 37 claims which are requests for waiver or modification of land use regulations. (Ord. O-58-06 § 1, 2006; Ord. O-151-05 § 1, 2005; Ord. O-20-05 § 1, 2005)
14.04.020 Definitions.
The following definitions shall apply to this chapter:
“Claim” means a written demand for compensation or request for waiver or modification of a specific Jefferson County land use regulation(s), timely filed with the Jefferson County community development department, containing the information required in this chapter.
“Deemed complete” means a determination by the county that a written claim has been timely filed and contains all of the information requited to be submitted by this chapter.
“Exempt regulation” means a regulation that:
1. Restricts or prohibits activities commonly and historically recognized as public nuisances under common law;
2. Restricts or prohibits activities for the protection of public health and safety, including but not limited to fire and building codes, health and sanitation regulations, solid or hazardous waste regulations and pollution control regulations;
3. Is required to comply with federal law;
4. Restricts or prohibits the use of a property for the purpose of selling pornography or performing nude dancing; or
5. Is a land use regulation as defined in this chapter, and was enacted prior to the date of acquisition of a property by either the present owner, or a family member of the present owner who owned the subject property prior to acquisition or inheritance by the present owner, whichever occurred first.
“Family member” means and 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.
“Filing date” means the business day (Monday through Friday, excepting holidays) on which a claim is physically received by the community development department. A postmark is not considered a filing date for purposes of this chapter.
“Land use regulation” as used in this chapter, the term means the Jefferson County comprehensive plan, zoning ordinance, subdivision ordinance or a transportation ordinance.
“Modification” means the alteration or partial suspension of a local land use regulation as applied to the subject property. Such modification of a regulation does not relieve the owner of the obligation to file a land use application under the county comprehensive plan and zoning ordinance, or to obtain any required land use or building permits.
“Motion to amend previously approved waiver” means a written demand by the owner to amend or modify the terms, scope, intensity of use or other conditions of a waiver previously granted by the Jefferson County board of commissioners.
“Owner” means all of the current fee title owner(s) of the subject property. Also referred to as “present” owner under Ballot Measure 37. A claim will not be considered complete unless all fee title owners sign the claim, or provide legal authorization for another to sign on their behalf.
“Reduction in value” means a reduction in the fair market value (FMV) of the subject property resulting from the enactment or enforcement of a land use regulation, as measured at the time a claim is filed. The owner shall have the burden of proving that the land use regulation(s) both restricts the intended use of the property and causes a reduction in the value of the property.
“Waiver” means the total suspension of application of a local land use regulation to the subject property. Such waiver of a regulation does not relieve the owner of the obligation to file a land use application under the county comprehensive plan and zoning ordinance, or to obtain any required land use or building permits. A waiver addresses the language under Ballot Measure 37 which authorizes a governing body to “remove” or “not apply” a land use regulation. (Ord. O-42-07 § 1, 2007; Ord. O-58-06 § 2, 2006; Ord. O-151-05 § 2, 2005; Ord. O-96-05 §§ 1, 3, 2005; Ord. O-38-05 § 1, 2005; Ord. O-20-05 § 2, 2005)
14.04.030 Submittal of claims.
A. Prior to filing a formal claim, a property owner may request a preliminary meeting with the Jefferson County community development department (JCCDD) for assistance in determining the land use regulations in effect at the time the owner acquired the property, the regulations enacted after the owner acquired the property, and whether the regulations were adopted by the county or the state. A fee for the preliminary meeting will be set by board order. If an owner proceeds to file a formal claim, the fee for the preliminary meeting shall be deducted from the amount of the applicable claim filing fee.
B. A claim shall be considered filed on the business day that it is physically received in the Jefferson County community development department. A postmark will not be recognized as a filing date.
C. In order to be timely filed, the claim must be received by the community development department by December 2, 2006 (two years from enactment of Ballot Measure 37), or within two years of the enactment of the land use regulation, or within two years of the date the owner of the property submitted a land use application in which the land use regulation was an approval criterion, whichever is later.
D. The county shall notify the claimant within thirty (30) days of the filing of any additional information that must be submitted to meet the requirements of Section 14.04.040 of this code.
E. The claim will not be deemed complete until the claimant has submitted the required information and paid the required claim processing fee; however, if a claimant fails to provide the information required in Section 14.04.040 of this chapter within one hundred eighty (180) days of the filing date of the claim, a waiver or modification may be denied.
F. Repealed by Ord. O-58-06.
G. If the county is sued for compensation in court and a claimant is not successful, all costs to the county in the action at trial and on appeal, including staff time and attorney fees, shall be paid by the claimant, in reciprocation of the provisions of subsection 6 of Ballot Measure 37. (Ord. O-58-06 § 3, 2006; Ord. O-96-05 § 4, 2005; Ord. O-20-05 § 3, 2005)
14.04.040 Claim requirements.
A claim shall include the following:
A. A written statement setting forth the substance of the claim, and bearing the name, address, telephone number and signature of all fee title owners in the property. In the case of a corporate owner, the claim shall contain the name, address, and telephone number of the registered agent or officer of the corporation, and a written corporate resolution authorizing the claim, or other evidence of corporate authorization for filing the claim. (This provision shall also apply to limited liability companies (LLCs) and other similar legal entities.) In other situations, such as trusts, the trustees or those legally authorized to act on behalf of the organization or entity should be listed with addresses and phone numbers.
B. A current assessor’s map or survey clearly delineating the entire property that is the subject of the claim, together with the street address, assessor’s map number and tax lot reference.
C. Written documentation of current title history:
1. A title report or other evidence of the title history;
2. The date the current owner acquired ownership of the property, and the ownership interests of all owners;
3. Sufficient information to enable staff to determine whether the claim is valid.
D. A statement of the relief sought by the owner and a detailed written description of the desired use of the property.
E. The burden remains on the claimant to cite the specific regulation(s) which restrict the property and cause a reduction in value; however, staff will attempt to assist claimants to try to identify regulations which restrict the claimant from a use of the property which would have been permitted at the time the claimant acquired the property.
F. Evidence of the reduction in the FMV of the subject property resulting from enactment or enforcement of the land use regulation(s) identified in subsection E of this section.
G. Payment of a claim processing fee at the time of filing a claim, as set by order of the board of commissioners. (Ord. O-58-06 § 4, 2006; Ord. O-96-05 § 5, 2005; Ord. O-20-05 § 4, 2005)
14.04.050 Review of claims.
A. A claim shall be reviewed by the board of commissioners and a decision issued within one hundred eighty (180) days of the date the claim was deemed complete. The board will deliberate and announce its decision at a public meeting, but is not required to conduct a public hearing or accept public testimony or input on the claim. Only the claimant(s) or its authorized representative may, in the discretion of the board, make comment or present additional material or information concerning the claim.
B. In making its decision, the board of commissioners shall consider the following:
1. Whether the land use regulation(s) at issue was enacted prior to the date of acquisition of the property by the current owner(s);
2. What land use regulation(s) were in place at the time the present owner(s) acquired the property;
3. Whether the land use regulation(s) in question had the effect of reducing the FMV of the property;
4. Whether the land use regulation(s) is an exempt regulation;
5. Repealed by Ord. O-58-06;
6. Repealed by Ord. O-58-06.
C. The board of commissioners may take, but is not limited to taking, any of the following actions on the claim:
1. Dismiss the claim (e.g., because it is invalid, exempt, not a local regulation, or fails to meet the procedural requirements of this chapter);
2. Deny the claim, based on, but not limited to, any of the following:
a. The land use regulation(s) at issue does not restrict the use of the property,
b. The FMV of the property has not been reduced by the enactment, enforcement or application of the specified land use regulation(s),
c. The land use regulation(s) in question was enacted prior to the date the present owner acquired the property,
d. The proposed use of the property was not allowed under land use regulations in effect at the time the current owner acquired the property,
e. The property that is the subject of the claim is not a lawfully created parcel, or
f. The owner would not be entitled to compensation based on the record;
3. Issue a decision which:
a. Modifies the land use regulation as it applies to the subject property, or
b. Waives the land use regulation as it applies to the subject property;
4. Apply conditions in any modification or waiver of the subject regulation.
D. The decision of the board of commissioners to either approve or deny a waiver shall be effective immediately at the public meeting in which the decision is made.
E. Repealed by Ord. O-58-06.
F. A decision to waive or modify a land use regulation shall not change the zoning designation of the property or relieve the owner of any requirement to file a land use application, nor exempt a property owner from obtaining any required planning, zoning, building, electrical, plumbing, mechanical, sanitation or driveway permits.
G. A decision to waive or modify a land use regulation enacted after the current owner(s) acquired the property, does not exempt the owner(s) from complying with all land use regulations that were in effect at the time the current owner(s) acquired the property.
H. A decision approving a waiver or modification of a land use regulation shall be in lieu of any monetary compensation, and shall preclude and bar the land owner from filing a claim for compensation on the same issue under Ballot Measure 37. (Ord. O-157-06 § 1, 2006; Ord. O-58-06 § 5, 2006; Ord. O-151-05 § 3, 2005; Ord. O-96-05 §§ 2, 6, 2005; Ord. O-38-05 § 2, 2005; Ord. O-20-05 § 5, 2005)
14.04.060 Conditions on waivers or modifications of regulations.
A. The board of commissioners in its discretion may impose any relevant conditions of approval if their decision is to modify or waive a land use regulation.
B. Failure to comply with all conditions of approval may invalidate a waiver or modification.
C. Repealed by Ord. O-58-06. (Ord. O-58-06 § 6, 2006; Ord. O-20-05 § 6, 2005)
14.04.070 Amendments to applicable state law.
The state law applicable to claims for compensation filed pursuant to this chapter are those portions of ORS Chapter 197 added or made a part of that chapter by Ballot Measure 37, passed by the voters in the general election on November 2, 2004, or as subsequently amended or modified by the Oregon State Legislature, or by judicial interpretation. Any claim that has been filed but that has not been completely processed and decided shall be subject to judicial interpretation or any amendments or modifications of such statutes or related administrative rules adopted after the effective date of the ordinance codified in this chapter. (Ord. O-151-05 § 4, 2005; Ord. O-20-05 § 7, 2005)
14.04.080 Severability.
If any phrase, clause, or part of this chapter is found to be invalid by a court of competent jurisdiction, the remaining phrases, clauses and parts shall remain in full force and effect. (Ord. O-20-05 § 8, 2005)
14.04.090 Emergency declared.
This chapter being necessary for the preservation of the health, safety and welfare of the residents of Jefferson County, and in order to comply promptly with the requirements of Ballot Measure 37, which became effective on December 2, 2004, an emergency is hereby declared to exist, and this chapter shall take effect immediately upon adoption. (Ord. O-58-06 § 7, 2006; Ord. O-20-05 § 9, 2005)
14.04.100 Processing of motions to amend previously approved waiver.
A. A “motion to amend a previously approved waiver” shall include the following:
1. A copy of the previously approved waiver order.
2. A written statement setting forth the substance of amendment or modification to the previously approved waiver, and bearing the name, address, telephone number and signature of all fee title owners in the property. In the case a corporate owner, the claim shall contain the name, address, and telephone number of the registered agent or officer of the corporation, and a written corporate resolution authorizing the claim, or other evidence of corporate authorization for filing the claim. (These provisions shall also apply to limited liability companies (LLCs) and other similar legal entities.) In other situations, such as trusts, the trustees or those legally authorized to act on behalf of the organization or entity should be listed with addresses and phone numbers.
3. Written documentation of any changes to the title of the property from the time the original claim was filed, or a sworn statement that no changes to title have occurred.
4. A statement of the relief sought by the owner and a detailed written description of the desired use of the property, including reasons the original waiver does not allow or restricts the desired use of the property.
5. A citation to the specific regulation(s) which restrict the desired use of the property and that have not been waived by the county.
6. Evidence of the reduction in FMV of the subject property resulting from enactment or enforcement of the land use regulation(s) identified in subsection (A)(5) of this section.
7. Payment of a waiver amendment claim processing fee at the time of filing the motion as set by order of the board of commissioners.
B. The motion to amend a previously approved waiver shall be considered filed on the business day that it is physically received by the Jefferson County community development department. A postmark will not be recognized as a filing date.
C. In order to be timely filed, the motion to amend a previously approved waiver must be received by the Jefferson County community development department within ten (10) years of the effective date of the waiver sought to be amended or modified.
D. A motion to amend a previously approved waiver shall be reviewed in the same manner as the original claim, as outlined in Section 14.04.050 of this chapter. The board of commissioners may take, but is not limited to taking, any of the actions on a motion to amend a previously approved waiver as could be taken on the original claim, as outlined in Section 14.04.050 of this chapter, or may deny the motion because there is no need for an amendment or modification because the original waiver provides the claimant the relief sought.
E. A decision of the board of commissioners to amend a previously approved waiver shall be effective immediately at the public meeting in which the decision is made. (Ord. O-42-07 § 2, 2007)