Chapter 2.35 CITY POLICIES

The city finds that property that is seized from arrested persons which constitute proceeds or instrumentalities of a crime must generally be returned to the criminal upon disposition of the charge. These instruments and proceeds are often used again to commit the same or another crime and the return of the property thus serves to encourage and perpetuate the commission of crime in the city. [Ord. 2204, 5-4-87. Code 2001 § 38.01.]

2.35.020 Definitions.

For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning:

“Conspiracy” means that term defined at ORS 161.450.

“Controlled substances” means those terms defined in ORS 475.005, except that this shall not include less than one avoirdupois ounce of marijuana.

“Deliver” or “delivery” means that term defined in ORS 475.005(8).

“Facilitate” means that the property must have some substantial connection to, or be instrumental in, the commission of the underlying illegal activity which this article seeks to prevent.

“Gambling” means that term defined in ORS 167.117.

“Illegal activity” means:

1. Gambling or promotion of gambling; or

2. The manufacture or delivery of controlled substances; or

3. The possession of controlled substances with the intent to distribute.

“Manufacture” means that term defined at ORS 475.005(15).

“Marijuana” means that term defined at ORS 475.005(16).

“Possession of controlled substances with the intent to distribute” means that term defined at 21 USC 841(a)(1).

“Production” means that term defined at ORS 475.005(20).

“Promotion of gambling” means that term defined at ORS 167.117. [Ord. 2204, 5-4-87. Code 2001 § 38.02.]

2.35.030 Forfeiture.

Any person who engages in or conspires to engage in illegal activity within the city shall forfeit to the city the following property, and no property right shall exist in them:

A. All controlled substances which are intended for or have been manufactured or delivered as defined in NMC 2.35.020.

B. All raw materials, products, containers, equipment, books, records, research materials (including formulas, microfilms, tapes, and data) of any kind which are used or are intended for use, to manufacture, compound, store, process or deliver any controlled substances.

C. All conveyances, including aircraft, vehicles or vessels, which are used to manufacture or deliver or in any manner to facilitate the manufacture or delivery of any controlled substance or any such conveyance which is used to transport or conceal any controlled substance.

D. All monies, negotiable instruments, securities or other things of value furnished or exchanged or intended to be furnished or exchanged by or to any person to facilitate any illegal activities and all proceeds or profit traceable to such furnishment, exchange or illegal activity.

E. All proceeds, profits and things of value including residential property traceable to any illegal activity.

F. All equipment, materials or records of any sort that are used, or intended for use, to facilitate any illegal gambling activity; and

G. Real Property.

1. All real property which is used to manufacture or deliver or distribute any controlled substance, or used to facilitate the promotion of gambling as defined in ORS 167.127.

2. This section shall not apply to residential real property which is used to facilitate the manufacture of less than one pound of marijuana when dried.

H. This article shall not apply to those unlawful acts defined in ORS 166.720(1) and (2) (1985 Edition). [Ord. 2204, 5-4-87. Code 2001 § 38.03.]

2.35.040 Seizure.

Any property subject to forfeiture to the city under this article may be seized by any peace officer on behalf of the city without issuance of court process when:

A. The seizure is incident to an arrest or search under a search warrant or an inspection under an administrative search; or

B. The property subject to seizure has been the subject of a prior judgment in favor of the city in a forfeiture proceeding under the ordinance; or

C. A peace officer lawfully seizes the property under ORS 133.525 through 133.703 and has probable cause or is intended for use in or to facilitate illegal activity as defined by this article. [Ord. 2204, 5-4-87. Code 2001 § 38.04.]

2.35.050 Institution of legal proceedings for forfeiture.

A. In the event of a seizure under this article, and upon recommendation of the chief of police, the city attorney, acting in the name of the city, may institute a forfeiture proceeding in a court of competent jurisdiction to obtain a judgment of forfeiture against the seized property.

B. The proceedings shall be instituted within 60 days of the seizure for purposes of this article, and in accordance with the Oregon Rules of Civil Procedure and the Oregon Rules of Evidence relating to civil actions. The defendant or the owner of the property may demand a trial by jury in any civil action brought pursuant to this article.

C. The city attorney shall cause notice of any forfeiture proceeding to be served by certified mail to all parties with a recorded security interest in the property to be forfeited.

D. The city attorney shall be entitled to deduct from the proceeds any attorneys’ fees, costs and expenses incurred in the litigation. [Ord. 2233, 6-14-88; Ord. 2204, 5-4-87. Code 2001 § 38.05.]

Cross-reference: See Oregon Rules of Civil Procedure Section 7. See also ORS Chapter 40.

2.35.060 Disposition of property.

A. Prior to obtaining any forfeiture judgment, any money, securities and negotiable instruments that are not retained by the chief of police, sheriff, or other law enforcement agency for evidentiary purposes shall be held by the chief of police pending the outcome of the forfeiture proceedings.

B. Seized property other than money, securities and negotiable instruments shall be kept in the custody of the chief of police for safekeeping until a forfeiture judgment is obtained.

C. When a judgment of forfeiture is obtained under this article, the property shall be disposed of as follows:

1. At the discretion of the chief of police, forfeited property other than cash, securities or negotiable instruments may be retained for official use by the chief of police for criminal justice and law enforcement purposes.

2. Cash and proceeds from securities and negotiable instruments shall be forfeited to the city and disbursed in the manner provided by this section.

3. When the chief of police determines that the property, other than cash or proceeds from securities or negotiable instruments, will not be needed or will no longer be used for criminal justice or law enforcement purposes, it shall be sold at a public auction or, at the discretion of the city council, sold on consignment or at a private sale on such terms as the council shall declare, and the net proceeds of the sale shall be disbursed as provided in this section.

4. The chief of police shall give notice of the aforementioned public sale by posting written notice of the sale in three public places within the city at least 10 days before the sale. The notice shall describe the property and shall state the time and place of public sale at which the property may be purchased by the highest bidder, for cash.

5. The chief of police may deduct reasonable costs incurred in conducting the sale. The chief of police may also cancel the sale if the bids are deemed to be inadequate by the chief of police.

6. Members of city government, including officials and employees, shall not be allowed to bid at any of these sales.

7. The net proceeds of any distribution of the sale of any property shall, after reimbursement of the costs of sale and after the deduction of any attorneys’ fees, costs and expenses incurred in the forfeiture litigation, be disbursed as follows:

a. If the seizure is affected by or in coordination with another law enforcement agency, one-third of the proceeds shall be distributed to the participating agency if that agency has created a budget account for said funds ensuring that said funds shall be used for law enforcement purposes. In the event that a participating agency does not have such a fund, the monies that it would have otherwise received shall be divided equally between the accounts described in subsection (C)(7)(b) of this section.

b. The remaining net proceeds after the deduction, if any, of the participating agency’s share shall be divided equally between the city general fund to be used for general city purposes, and an account of the city general fund to be reflected as revenue to the budget of the Newberg police department to be used for law enforcement purposes. [Ord. 2733 Att. A, 2-7-11; Ord. 2204, 5-4-87. Code 2001 § 38.06.]

2.35.070 Nonconsensual use of property for illegal activity/affirmative defense.

No property shall be forfeited under this article to the extent of the interest of an owner or holder of a recorded security interest who did not consent to or was not aware of the use of the property in the illegal activity. [Ord. 2204, 5-4-87. Code 2001 § 38.07.]

Article II. Specified Crime Property

2.35.080 Findings.

The city council finds specified crime property shall be prohibited in the city, as follows:

A. It is unlawful for structures to be employed or used as specified crime property within the city. If property is found to be used or employed as such, it is subject to closure for a period of up to one year.

B. It is unlawful for any person to employ, use, maintain, or suffer the employment, use or maintenance of specified crime property under their ownership and/or control. If an owner is found in violation of this article, they may be subject to civil penalties of up to $500.00 per day for each day the property has been used as specified crime property.

C. Unlawful Use of Structure.

1. It is unlawful for any person to use or occupy any structure, edifice or building or part of any structure, edifice or building determined to be specified crime property after the notice has been posted at the subject property pursuant to NMC 2.35.100(A)(1). Furthermore, it shall be unlawful for any person to remove, deface or otherwise destroy such notice posted at any specified crime property.

2. The provisions of subsection (C)(1) of this section may be waived by the city in the event that the chief of police or a court of competent jurisdiction determines that exigent circumstances are such that the use or occupancy of the subject property after posting but prior to a full court hearing is mandated. [Ord. 2214, 8-3-87. Code 2001 § 38.30.]

Penalty: See NMC 1.05.200.

2.35.090 Definitions.

For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning:

“Chief of police” includes any person designated by the Newberg chief of police as the chief of police’s delegate in the enforcement of this article.

“Owner” means any person, agent, firm, corporation, association or partnership having a legal or equitable interest in the property, including an occupant of the structure.

“Person” means any natural person, association, partnership or corporation capable of owning or using property in the city.

“Specified crime property” means a structure, edifice, or building of any kind, or any parts of a structure, edifice, or building, where activity involving the use of controlled substances as defined by ORS 475.005, gambling as defined by ORS 167.117 or prostitution as defined by ORS 167.007 has occurred or is occurring. [Ord. 2214, 8-3-87. Code 2001 § 38.31.]

2.35.100 Procedure.

A. When the chief of police believes that a structure has been or is being used or maintained in violation of NMC 2.35.080, the chief of police may commence proceedings to cause the closure of the structure as well as the imposition of civil penalties against any or all of its owner(s). In the event the chief of police wishes to commence proceedings:

1. The chief of police shall notify the owner(s) of record in writing that the structure has been determined to be specified crime property. The notice shall contain the following information:

a. The street address and a legal description sufficient for identification of the premises on which the structure, building or edifice is located;

b. A statement that the chief of police has found the structure, building or edifice to be in violation of this article with a concise description of the conditions leading to the chief of police’s findings (probable cause).

2. A copy of the notice shall be posted on the structure and a copy served on the owner(s) of record as indicated on the last equalized assessment of the tax rolls of the county in which the structure is located. Service shall be made either personally or by mailing a copy of the notice by registered or certified mail to each owner’s address as it appeared on the assessment roll, or as may otherwise be known to the chief of police. If no address appears or is known to the chief of police, then a copy of the notice shall be mailed first class, addressed to such person at the address of the structure believed to be the specified crime property. Furthermore, a copy of the notice shall be served on the occupant of the structure if that person is different than that listed on the tax rolls, either personally or by mailing a copy of the notice by first class mail to them at that structure.

3. The failure of any person or owner to receive actual notice of the determination by the chief of police shall not invalidate or otherwise affect the proceedings under this article.

B. Concurrent with the notification procedures set forth above, the chief of police shall send a copy of the notice to the city council as well as any other documentation which the chief of police believes supports the closure of the structure and the imposition of civil penalties. The city council may then authorize the city attorney’s office to commence civil proceedings in a court of competent jurisdiction seeking the closure of the structure as well as the imposition of civil penalties against any or all of the owners of the structure, and any such other relief as may be deemed appropriate. [Ord. 2733 Att. A, 2-7-11; Ord. 2214, 8-3-87. Code 2001 § 38.32.]

2.35.110 Commencement of actions – Burdens of proof – Defenses – Mitigation of civil penalty.

A. A proceeding other than one pursuant to NMC 2.35.120 may not be commenced unless at least five days have elapsed between the service of the notice pursuant to NMC 2.35.100 and the filing of the action. For purposes of this section, service shall be effective as of the date of posting and mailing of the notice.

B. In an action seeking the closure of a structure as specified crime property, the city shall have the initial burden of proof to show by a preponderance of the evidence that the structure is a specified crime property.

C. It is a defense to an action seeking the closure of a structure that the owner of a structure at the time in question could not, in the exercise of reasonable care or diligence, determine that the structure was being used or maintained as a specified crime property.

D. In establishing the amount of any civil penalty requested, the court shall consider the following factors, if appropriate, and shall cite those found applicable:

1. The actions taken by the owner(s) to mitigate or correct the problem at the structure;

2. The financial condition of the owner;

3. Whether the problem at the structure was repeated or continuous;

4. The magnitude or gravity of the problem;

5. The economic or financial benefit occurring or likely to occur to the owner(s) as a result of the conditions at the structure;

6. The cooperativeness of the owner(s) with the city;

7. The cost to the city of investigating and correcting or attempting to correct the condition;

8. Any other factor deemed by the court to be relevant. [Ord. 2214, 8-3-87. Code 2001 § 38.33.]

2.35.120 Closure during pendency of action.

In the event that it is determined that the structure is an immediate threat to the public health, safety and welfare, the city may apply to the court for interim relief that is deemed by the city council and/or city attorney to be appropriate. In such an event, the notification procedures set forth in NMC 2.35.100(A) need not be complied with. [Ord. 2214, 8-3-87. Code 2001 § 38.34.]

2.35.130 Enforcement of closure order – Costs and civil penalty as lien.

A. In the event that a court finds that a structure, edifice or building or part of a structure, edifice or building constitutes specified crime property as defined in this chapter, the court may order the owner that it be closed for any period of up to one year and that the owner(s) pay to the city a civil penalty of up to $500.00 for each day the property has been used as specified crime property.

B. Securing Structure – Statement of Costs – Lien.

1. The court may also authorize the city to physically secure the structure against use or occupancy in the event that the owner(s) fails to do so within the time specified by the court. In the event that the city is authorized to secure the property, all costs reasonably incurred by the city to effect the closure shall, and any civil penalty imposed may, be made an assessment lien upon the property subject to the order.

2. The police department effecting the closure shall prepare a statement of costs and the city shall thereafter submit that statement to the court for its review. If no objection to the statement is made within the period prescribed by Oregon Rules of Civil Procedure 68, a certified copy of the statement, including a legal description of the property, shall be forwarded to the finance department, which thereafter shall enter the same in the city’s lien docket.

3. Liens imposed by this chapter shall be collected in all respects as provided for street improvement liens, and shall bear interest at the rate of nine percent per year from 10 days after the entry in the lien docket.

C. Any person who is assessed a civil penalty by the court shall be personally liable for the payment of the penalty to the city. [Ord. 2214, 8-3-87. Code 2001 § 38.35.]

2.35.140 Relief from closure order.

An owner of a structure determined to be specified crime property may obtain relief from the court’s order if:

A. They appear and pay all costs associated with the proceedings under this chapter;

B. They file a bond in such a place and form as the court may by order direct in an amount not less than the tax-assessed value of the structure; and

C. They enter into a stipulation with the city that they will immediately abate the conditions giving rise to the specified crime property and prevent the same from being established or maintained for a period of one year thereafter. The stipulation will then be made part of the court’s file. In the event that the owner violates the terms of the stipulation, the city may apply to the court for an order awarding up to the entire amount of the aforementioned bond to the city as a penalty as well as such other relief, including closure for any additional period of up to one year, that is deemed by the court as appropriate. [Ord. 2214, 8-3-87. Code 2001 § 38.36.]

2.35.150 Attorneys’ fees.

In any action seeking closure of the structure pursuant to this chapter, the court may, in its discretion, award to the prevailing party attorneys’ fees and costs, including expert witness fees. [Ord. 2214, 8-3-87. Code 2001 § 38.37.]

Article III. Disposition of Unclaimed Property

2.35.160 Storage of property.

A. It shall be the duty of the police department, whenever a motor vehicle or other personal property shall be found abandoned upon the streets of the city, or be found within the corporate limits of the city, or without an owner claiming the same, or shall, by reason of arrest or in any other manner, come into the hands of the police department without a claimant, to either place the same upon property of the city or store the same with some reputable motor vehicle storage yard, garage or other storage place pending investigation into the ownership of said personal property.

B. This article shall have no application to discarded vehicles described in Chapter 8.05 NMC, which shall be disposed of in accordance with the procedures provided therein. [Ord. 1724, 3-4-74; Ord. 1100, 5-7-51. Code 2001 § 38.60.]

Cross-reference: Abandoned and discarded motor vehicles, see Chapter 8.05 NMC.

2.35.170 Owner identity.

The officers of the police force, upon finding such vehicle or personal property or coming into possession of the same, shall make diligent inquiry of all available persons as to the name and address of the owner, conditional vendor or mortgagee or any other person interested therein, and shall examine said motor vehicle or other personal property for license number, motor number, serial number, make and style, and for any other information which will aid in the identification of such motor vehicle or personal property and in the identification of the owner, conditional vendor, mortgagee or other person. [Ord. 1100, 5-7-51. Code 2001 § 38.61.]

2.35.180 Notice to owner.

A. If a motor vehicle, after having acquired all available information, the police department shall immediately transmit such information to the Oregon Department of Motor Vehicles, with an inquiry for the name and address of the owner, conditional vendor, mortgagee or other person interested.

B. If the owner, conditional vendor, mortgagee or other person interested be found and identified, the person shall be immediately notified by registered letter that the personal property is held by the police department of the city and will be sold at public auction at a definite place in the city on a day and time certain, to the highest and best bidder for cash, which sale shall not be held until 10 days have elapsed from the receipt by owner of the registered notice. [Ord. 1100, 5-7-51. Code 2001 § 38.62.]

2.35.190 Notice of sale.

If the owner, conditional vendor, mortgagee or other person interested cannot be found after due diligence as herein set out, the chief of police shall cause to be published in the city a notice embodying the foregoing information, which shall be published two times, the first publication of which shall be made more than 10 days before such proposed sale. [Ord. 1100, 5-7-51. Code 2001 § 38.63.]

2.35.200 Redemption.

If the owner, conditional vendor, mortgagee or other interested person shall apply to the chief of police before a sale shall have taken place for the return of said motor vehicle or personal property, and shall submit to the chief of police satisfactory evidence of the person’s interest therein, and shall tender with said application the costs incurred in the seizing, keeping and making sale of said motor vehicle or personal property, the chief of police, upon being satisfied that the claim is rightful, shall surrender the same to claimant. [Ord. 1100, 5-7-51. Code 2001 § 38.64.]

2.35.210 Sale.

A. If no claim shall have been made before the time set for the sale of said motor vehicle or personal property, the chief of police shall, at the time and place appointed, within view of the motor vehicle or personal property to be sold, offer for sale and shall sell said vehicle or other personal property to the highest and best bidder for cash; and in default of bids from others for a greater sum, shall bid the same in for the city at the amount of its costs incurred in the seizing, keeping and offering for sale of the same.

B. As exception to subsection (A) of this section, bicycles obtained by the police department pursuant to this article may be donated to a worthy nonprofit organization, for the benefit of the public. No prior notice of donation need be made or published. The chief of police or designee shall choose the organization(s) that qualify for such donations. Such choice shall be made within the sole discretion of the chief of police. [Ord. 2534, 10-16-00; Ord. 1100, 5-7-51. Code 2001 § 38.65.]

2.35.220 Proceeds.

The proceeds of such sale shall be first applied to the payment of the costs incurred in the seizing, keeping and making of such sale; and the balance, if any, shall be paid to the city, to be credited to the general fund. [Ord. 1100, 5-7-51. Code 2001 § 38.66.]

2.35.230 Certificate of sale.

A. Certificate of Sale. At the time of payment of the purchase price, the chief of police or designee shall execute a certificate of sale, in duplicate, the original of which shall be delivered to the purchaser and a copy filed with the city. Such certificate shall be upon a form approved by the city.

B. Certificate of Donation. At the time of donation, the chief of police or designee shall execute a certificate of donation, in duplicate, the original of which shall be delivered to the donee and a copy filed with the city. Said certificate shall be upon a form approved by the city. [Ord. 2534, 10-16-00; Ord. 1100, 5-7-51. Code 2001 § 38.67.]

2.35.240 Delivery.

Upon such sale or donation being consummated, the chief of police or designee shall deliver such motor vehicle or other personal property and said certificate of sale and/or certificate of donation to the purchaser. Such sale and conveyance shall be without redemption. [Ord. 2534, 10-16-00; Ord. 1100, 5-7-51. Code 2001 § 38.68.]

2.35.250 Owner may claim proceeds.

At any time within one year after such sale, the owner of any property sold, except bicycles which are donated, as herein provided, shall be entitled to have the balance of the proceeds of such sale paid to the owner out of the general fund, upon making application to the council and presenting satisfactory proof of ownership. An owner who comes forth to claim a bicycle after being donated shall not be entitled to any monetary remuneration, and shall be provided with a copy of the certificate of donation. [Ord. 2534, 10-16-00; Ord. 1100, 5-7-51. Code 2001 § 38.69.]

2.35.260 Sale of property by other authorized agents.

In lieu of the procedures described in this article, the city may dispose of any unclaimed property which has been held for not less than 60 days, any property which has been confiscated and not ordered destroyed, except such property held as evidence in any legal or court proceeding, or any surplus city property, under terms of an intergovernmental agreement entered into with the Oregon Department of General Services, or by contract with an online auction service that conducts sales of government surplus properties. [Ord. 2778, 1-5-15. Code 2001 § 38.70.]

2.35.270 Sale of city-owned surplus property.

A. City-owned personal property, which is declared to be unnecessary and surplus to the operation of the city by the city manager, may be disposed of by the sale procedures set forth in NMC 2.35.160 through 2.35.260, or by sale to another government body for fair market value. The city manager shall be authorized to establish fair market value.

B. If city-owned personal property is declared to be unnecessary and surplus, the city manager may donate the surplus personal property to other government bodies or recognized private, not-for-profit organizations subject to the following conditions:

1. The surplus personal property is to be used for public purposes by the recipient.

2. The recipient shall provide proof, to the city manager’s satisfaction, as to its status as a government body or a private, not-for-profit organization.

3. Written request may be submitted for surplus property, but such request will be held open for a period not to exceed six months from the date of its receipt.

4. Consideration of a request will be given only as far as it relates to the surplus personal property available at the time of request.

5. As far as practical, requests will be granted on a first-come, first-served basis.

6. The following types of surplus property may not be donated:

a. Contraband;

b. Firearms;

c. Hazardous items;

d. Items of historical significance, regardless of market value, unless approved by the city council; and

e. Any other item deemed inappropriate for donation by the city manager.

7. The city shall provide the recipient of donated surplus personal property with appropriate documentation transferring ownership of the property to the recipient.

8. The city manager shall prepare and file an annual report to the city council of all items donated during each fiscal year. The report shall contain:

a. The name of the recipient of the surplus property;

b. A description of the surplus property donated; and

c. The estimated market value of the surplus property at the time of its donation. [Ord. 2573, 12-2-02. Code 2001 § 38.71.]

Article IV. Lien Searches

2.35.280 Authority.

The finance director or designee shall provide a lien search system which complies with state law. [Ord. 2535, 9-5-00. Code 2001 § 38.80.]

2.35.290 Requests.

A. Lien requests on property within the city limits may be submitted to the city in writing or may be searched electronically through a system provided by the city.

B. A written application for a lien search shall contain a valid description of the property involved, including the Yamhill County tax lot number. Authorized companies may use the electronic system with prior approval from the finance director or designee. Authorized companies shall have a unique password obtained from the city.

C. The finance director or designee shall issue a separate certificate and shall collect a separate fee for each parcel of land for which an application for certificate is made. Companies using the electronic system shall pay a separate fee for each property searched. [Ord. 2535, 9-5-00. Code 2001 § 38.81.]

2.35.300 Fees.

A. Before a certificate of a lien shall be issued, there shall first be paid to the city a fee as established by resolution.

B. For lien searches performed through an online electronic medium, there shall be a fee charged as established by resolution. The authorized companies shall be billed monthly. Failure to pay within 30 days will suspend the company’s authority to use the electronic system until all past due bills are paid. [Ord. 2535, 9-5-00. Code 2001 § 38.82.]

Code reviser’s note: See also Res. 2771.

Article V. Criminal Background Checks

2.35.310 Authorization.

Pursuant to the provisions of OAR 257-10-025, the police department, upon proper authorization, can access the Law Enforcement Data System (LEDS) for purposes of doing background criminal offender checks for applicants as employees or volunteers for the city. [Ord. 2542, 2-5-01. Code 2001 § 38.90.]

2.35.320 Releases to be obtained.

Proper releases will be obtained from applicants before criminal offender background checks are made. Procedures have been established to ensure confidentiality of records. The city attorney shall approve the form of release and procedures. [Ord. 2542, 2-5-01. Code 2001 § 38.91.]

Article VI. Review of Claims for Compensation

2.35.330 Purpose.

A. The purpose of this article is to implement provisions added to ORS Chapter 197, as amended by Ballot Measure 49, passed November 6, 2007, by establishing a prompt and fair opportunity for property owners to present their claims to the city.

B. The regulations and requirements of this article are designed to achieve the following objectives:

1. To process claims for compensation quickly, openly, thoroughly, and consistently with the law.

2. To enable present real property owners making claims for compensation to have an adequate and fair opportunity to present their claims to the city’s decision maker.

3. To provide the city’s decision maker with the factual and analytical information necessary to adequately and fairly consider claims for compensation, and take appropriate action under the alternatives provided by law.

4. To preserve and protect limited public funds.

5. To preserve and protect the interests of the community by providing for public input into the process of reviewing claims.

6. To establish a record of decisions capable of withstanding legal review.

7. To implement the goals and objectives of the Newberg comprehensive plan and Newberg development code.

C. This article is intended to implement Measure 49 and should be interpreted as being consistent with the measure. Terms of other provisions of Measure 49 not included in this article shall apply. [Ord. 2693 § 1 (Exh. A(1)), 3-3-08; Ord. 2612, 12-6-04. Code 2001 § 38.100.]

Cross-reference: For alternatives to compensation, see ORS 195.305.

2.35.340 Definitions.

For purposes of this article the following definitions shall apply:

“Acquisition date” means the date the owner became the owner of the property as shown in the Yamhill County deed records. If there is more than one owner for the same property under the same claim and the owners have different acquisition dates, the acquisition date is the earliest of those dates. If the owner is the surviving spouse of a person who was an owner of the property in fee title, the owner’s acquisition date is the date the owner was married to the deceased spouse or the date the spouse acquired the property, whichever is later. If an owner conveyed the property to another person and reacquired the property, whether by foreclosure or otherwise, the owner’s acquisition date is the date the owner reacquired ownership of the property. A default judgment entered after December 2, 2004, does not alter an owner’s acquisition date unless the owner’s acquisition date is after December 2, 2004.

“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 or registered under ORS Chapter 38, stating the fair market value and highest and best use of a property, including a report documenting the methodology and assumptions used in making the statement, prepared in accordance with and including the information required under Measure 49.

“City manager” means the city manager of the City of Newberg, or other person designated by the city manager to process claims under this article.

“Claim” means the written demand for compensation under Measure 49.

“Claimant” means the owner, or the owner’s authorized representative, who files a claim.

“Exempt land use regulation” means any land use regulation where compensation is not required under Measure 49, including the following:

1. A regulation enacted prior to the claimant’s acquisition date;

2. A regulation enacted on or before January 1, 2007;

3. A regulation enacted before the owner filed an application for a comprehensive plan or zoning amendment, provided the city approved the amendment;

4. A regulation enacted before the owner filed a petition to annex the property to the city;

5. A regulation restricting or prohibiting activities commonly and historically recognized as public nuisances under common law;

6. A regulation restricting or prohibiting activities for the protection of public health and safety;

7. A regulation required to comply with federal law;

8. A regulation restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing; or

9. A regulation that restricts use other than residential use of private real property or a farming or forest practice.

“Fair market value” means the amount of money, in cash, that the property would bring if the property was offered for sale by a person who desires to sell the property but is not obligated to sell the property, and if the property was bought by a person who was willing to buy the property but not obligated to buy the property. The fair market value is the actual value of property, with all of the property’s adaptations to general and special purposes. The fair market value of property does not include any prospective value, speculative value or possible value based upon future expenditures and improvements.

“Land use regulation” means a provision of the Newberg comprehensive plan or development code that restricts the residential use of private real property zoned for residential use.

“Measure 49” means those provisions of ORS Chapters 195 and 197 amended by Ballot Measure 37, passed November 2, 2004, and further amended by Ballot Measure 49, passed November 6, 2007.

“Owner” means the owner of fee title to the property as shown in the Yamhill County deed records; the purchaser under a land sale contract, if there is a recorded land sale contract in force for the property; or if the property is owned by the trustee of a revocable trust, the settler of a revocable trust, except that when the trust becomes irrevocable only the trustee is the owner.

“Property” means the private real property described in a claim and contiguous private real property that is owned by the same owner, whether or not the contiguous property is described in another claim, and that is not property owned by the federal government, an Indian tribe or a public body, as defined in ORS 192.410.

“Zoned for residential use” means zoning that has as its primary purpose single-family residential use. This includes R-1 zoning, and excludes R-2, R-3, and R-P zoning. [Ord. 2693 § 1 (Exh. A(1)), 3-3-08; Ord. 2612, 12-6-04. Code 2001 § 38.101.]

2.35.350 Prefiling conference.

A. Before submitting a claim, the claimant shall schedule and attend a prefiling conference with the city manager to discuss the claim. The prefiling conference shall follow the procedure set forth by the city manager and may include a filing fee, and may include invitations to other organizations and agencies. The filing fee shall be set by council resolution.

B. To schedule a prefiling conference, the claimant shall contact the city manager and pay the appropriate conference fee. The prefiling conference is for the claimant to provide a summary of the claim to the city manager, and for the city manager to provide information to the claimant about regulations that may affect the claim. The conference also is for the city manager to inform the claimant of alternate methods for the owner to have their land use request considered, such as applying for a zone change or variance.

C. The city manager is not authorized to settle any claim at a prefiling conference. The city manager and owner should have a frank and open discussion concerning the claim. [Ord. 2693 § 1 (Exh. A(1)), 3-3-08; Ord. 2612, 12-6-04. Code 2001 § 38.102.]

2.35.360 Filing a claim.

A. Eligibility. A person may file a claim when all of the following apply:

1. The person is an owner of the property and all owners of the property have consented in writing to the filing of the claim;

2. The person’s desired use of the property is a residential use or a farming or forest practice;

3. The person’s desired use of the property is restricted by one or more land use regulations enacted after January 1, 2007; and

4. The enactment of one or more land use regulations after January 1, 2007, other than land use regulations described in ORS 197.352(3), has reduced the fair market value of the property.

B. Timeframe for Filing. A claim must be submitted no more than five years after the date the land use regulation in question was enacted. Any claim filed less than one year after the date the land use regulation was enacted shall be considered incomplete.

C. Information to Be Submitted with the Claim. A claim shall be submitted and accepted for review upon forms established by the city manager. A claim shall consist of all materials required by this article. The city manager may require additional information as necessary to evaluate the claim. The city manager also may waive any submittal requirements if, in the city manager’s opinion, the information is not necessary to evaluate the claim. Required materials include:

1. Form. The city manager shall establish a claim form and provide it to owners making claims. The claim shall be presented on a completed claim form.

2. Fee. An application fee shall be paid in advance for filing to cover the costs of complete review and claim processing. This fee shall be established by council resolution. In addition, the fee may include a deposit to cover costs that may be incurred in processing the claim, such as the cost of obtaining additional appraisals, and the costs of noticing and conducting hearings.

3. Owner. Identification of the name, address, and phone number of the owner(s), and the signature of all the owners or a signed statement of consent from all the owners shall be provided. If the owner has a representative, then the same information must be provided for the representative, along with authorization to act on behalf of the owner.

4. Property Description. A legal description of the property as well as a common address and tax lot number for the property shall be provided.

5. Evidence of Ownership and Acquisition Date. Evidence of ownership and the owner’s acquisition date, including a copy of the instrument conveying the property to the claimant, shall be provided.

6. 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 shall be provided. 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.

7. Nearby Property Owner Information. The names and addresses of all owners of property within 500 feet of the property shall be provided.

8. Listing of Nearby Owned Property. Identification of any other property owned by the owner within 500 feet of the boundary of the property shall be provided.

9. Current Land Use Regulation. A copy of or citation to the land use regulation that the owner making the claim believes is restricting the claimant’s desired use of the property, including a narrative explaining specifically which part of the regulation the claimant believes restricts the use and how.

10. Copy of Prior Regulations. A copy or citation to the land use regulation immediately before the land use regulation in question was enacted.

11. Appraisals. A written appraisal by an appraiser, qualified as such in the State of Oregon, prepared in accordance with the provisions of Measure 49, showing the fair market value of the property one year before and one year after enactment of the land use regulation in question, the amount of the alleged reduction in the fair market value of the property attributable to the land use regulation, and the rationale and factors leading to that conclusion. If the claim is for more than $10,000, copies of two appraisals by different appraisers shall be included. The appraisal must include a statement of the highest and best use of the property at the time the land use regulation was enacted.

12. Desired Use. The claim shall include a statement of the claimant’s desired use of the property. The use must be for residential use or a farming or forest practice, and must be restricted by a land use regulation.

13. Narrative. The claimant shall provide a narrative describing the history of the ownership of the property, the history of the relevant land use regulations applicable to the claim, the history of land use and improvements of the property, and how the enactment of the land use regulation allegedly restricts the use of the property, or any interest therein, and how the owner claims the restriction has the effect of reducing the fair market value of the property.

14. Criteria Response. The claimant shall submit a narrative detailing how the criteria in NMC 2.35.370(I) are or are not satisfied.

15. Copies of Prior Zone Change, Annexation or Permit Applications. The claimant shall provide copies of any zone change applications, annexation petitions, conditional use permit applications, variances or other relevant applications that have previously been filed in connection with the property and the action taken.

16. Site Plan and Drawings. A copy of the site plan and drawings related to the current and desired use of the property.

17. Statement of Relief Sought. This should include the monetary amount the owner claims, and/or how the owner would like any land use regulation applied or not applied to development of the property. [Ord. 2693 § 1 (Exh. A(1)), 3-3-08. Code 2001 § 38.103.]

2.35.370 Claim review process.

A. Completeness Review.

1. Upon receiving a claim, the city manager shall review the claim and determine whether or not it includes the required information and fee, and whether or not the claimant is or potentially is able to file the claim.

2. If the claimant submits an incomplete claim, the city manager shall notify the claimant in writing of the information or fee that is missing within 60 days of receiving the claim.

3. After a notice of incompletion is sent to the claimant, the claimant shall submit:

a. The missing information;

b. Part of the missing information and a written notice that the remainder of the missing information will not be provided; or

c. Written notice that none of the missing information will be provided.

4. If the claimant does not submit the information in subsection (A)(3) of this section within one year of the date the notice is sent, then the claim is considered withdrawn.

5. The claim shall be considered complete on:

a. The original date submitted if it is complete when submitted, or if the city manager does not send a notice of incompletion in accordance with subsection (A)(2) of this section.

b. The date the information in subsection (A)(3) of this section is submitted.

B. Initial Determination of Ineligibility. After receiving a complete claim, the city manager may determine that the claimant was not eligible to file the claim according the eligibility criteria in subsection (A) of this section. In this case, the city manager shall notify the claimant of this determination in writing. No further action on the claim will be taken.

C. Notice of Hearing. After receiving a complete claim, the city manager shall schedule a hearing before the city council to consider the claim. The city manager shall provide notice at least 30 days prior to the city council hearing on the claim to the following:

1. All owners identified in the claim and the claimant.

2. All owners within 300 feet of the property.

3. Any neighborhood or community organization recognized by the city and whose boundaries include the site.

4. The Department of Land Conservation and Development.

5. Yamhill County.

A copy of the notice shall be kept in the applicable file and shall be considered as the notice provided to the city.

D. Notice Content. The notice must describe the claim and state:

1. The date, time and location of city council public hearing and the final date for submission of written evidence and arguments relating to the claim;

2. That judicial review of the final determination of the city on the claim is limited to the written evidence and arguments submitted to the city; and

3. That judicial review is available only for issues that are raised with sufficient specificity to afford the city an opportunity to respond.

E. City Manager Report. The city manager shall prepare a report evaluating the claim. The report shall evaluate:

1. Whether or not the claim is exempt from Measure 49 because the regulation is an exempt land use regulation or any other factor.

2. Whether or not the land use regulation may have had the effect of reducing the fair market value of the property, and what that amount may be.

3. Whether or not the claim meets the applicable criteria.

4. The benefits to the public of the applicable regulation.

5. A recommendation on what action the city council should take on the claim.

F. Additional Information. The city manager may obtain additional needed evidence and information to evaluate the claim. This may include additional appraisals, additional legal opinions, additional background on the property use, and so forth. The costs of obtaining this information shall be taken from the fee and deposit, or, if these are not sufficient, shall be billed to the owner. If the bill is not paid in a timely manner, the city manager will file a lien on the property for the amount due.

G. City Council Hearing. The city council shall receive the city manager’s report and hold a public hearing on the claim. Written evidence and arguments in proceedings on the claim must be submitted prior to the close of the final public hearing on the claim. The claimant may request additional time to submit written evidence and arguments in response to testimony or submittals. The request must be made before the close of testimony or the deadline for submission of written evidence and arguments. The city council is not obligated to grant such a request, and may require that the applicant waive the time limit for processing claims as a prerequisite to granting such an extension. The city shall make the record on review of a claim, including any staff reports, available to the public before the close of the record.

H. City Council Determination of Validity of the Claim. Except as noted herein, the city council will take final determination on any claim. The owner will bear the burden of proof relating to the claim and entitlement to just compensation. The city council will determine whether or not the claim is valid according to the criteria below.

I. Criteria. In order to be valid, a claim must meet all of the following criteria:

1. All owners of the property have consented in writing to the filing of the claim.

2. The claimant’s desired use of the property is a residential use or a farming or forest practice.

3. The claimant’s desired use of the property is restricted by one or more land use regulations enacted after January 1, 2007.

4. The enactment of one or more land use regulations after January 1, 2007, has reduced the fair market value of the property.

5. The land use regulation in question was enacted by the city.

6. The land use regulations in question are not exempt land use regulations.

7. The claim was filed timely.

8. The highest and best use of the property at the time the land use regulation was enacted was the use that was restricted by the land use regulation.

9. The property is zoned for residential use.

J. City Council Action.

1. If the city council determines that the claim does not meet the applicable criteria, and/or that the claimant was not eligible to file the claim, then it shall enter an order denying the claim.

2. If the city council determines that the claim does meet the applicable criteria, then it may do any of the following:

a. Compensate the claimant for the reduction in the fair market value of the property. The type and amount of compensation may be either in the amount requested, or in some other amount or type supported by the evidence in the record, subject to the availability and appropriation of funds for that purpose.

b. Authorize the claimant to use the property without application of the land use regulation to the extent necessary to offset the reduction in the fair market value of the property.

c. Take such other actions as the city council deems appropriate under Measure 49.

K. Final Determination. The city council shall issue a final determination on the claim within 180 days after the date the claim is complete. The city recorder shall mail a copy of the final determination to the claimant and to any person who submitted written evidence or arguments before the close of the record. The city recorder shall forward to the Yamhill County clerk a memorandum of the final determination for recording in the Yamhill County deed records. [Ord. 2693 § 1 (Exh. A(1)), 3-3-08. Code 2001 § 38.104.]

2.35.380 Conditions, revocation, proceedings, and transfer.

A. Condition. The city council may establish any relevant conditions of approval for compensation, should compensation be granted, or for any other action taken under this article.

B. Revocation. Failure to comply with any condition of approval is grounds for revocation of the approval of the compensation for the claim, grounds for recovering any compensation paid and grounds for revocation of any other action taken under this article.

C. Proceeding. In the event the owner, or the owner’s successor in interest, 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 city council review of a claim under this article.

D. A use authorized by this article has the legal status of a lawful nonconforming use in the same manner as provided by ORS 215.130 and NMC 15.205.010 through 15.205.100. The owner may carry out a use authorized by the city council, except where regulations beyond the city restrict the use. When a use authorized by this section is lawfully established, the use may be continued lawfully in the same manner as provided by ORS 215.130 and NMC 15.205.010 through 15.205.100. [Ord. 2693 § 1 (Exh. A(1)), 3-3-08; Ord. 2612, 12-6-04. Code 2001 § 38.105.]

2.35.390 Cost and attorneys’ fees.

If an owner commences an action to collect compensation and the city prevails, the city is entitled to all fees and costs it incurred, as well as any sum that a court, including any appellate court, may deem reasonable as attorneys’ fees. [Ord. 2612, 12-6-04. Code 2001 § 38.106.]

2.35.400 Review of a decision.

A writ of review under ORS 34.010 through 34.102 is the exclusive means to contest a final decision of the city council under this article and must be filed within 60 days of the decision. The owner of the real property that is the subject of the demand under this article is a necessary party in such a proceeding. [Ord. 2612, 12-6-04. Code 2001 § 38.107.]

2.35.410 Real property compensation – Private cause of action.

If the city’s approval of a demand by removing or modifying or not applying a land use regulation causes a reduction in the fair market value of other property located in the vicinity of the owner’s property, the neighbor(s) shall have a cause of action in State Circuit Court to recover from the owner the amount of the reduction in their property value, and shall also be entitled to reasonable attorneys’ fees. [Ord. 2612, 12-6-04. Code 2001 § 38.108.]

2.35.420 Applicable state law – No independent rights created.

For all demands filed, the applicable state law is Measure 37 and/or as amended, modified or clarified by subsequent amendments or rules adopted by the Oregon State Legislature or the Oregon state administrative agencies. This article shall be interpreted in a manner consistent with Measure 37, other implementing statutes or regulations, and applicable court decisions. Any demand that has not been processed completely under this article shall be subject to any such amendments; modifications, clarifications or other actions taken at the state level and this article 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 article is adopted solely to address demands filed under the authority of Measure 37. No rights independent of said provisions are created by adoption of this article. [Ord. 2612, 12-6-04. Code 2001 § 38.109.]