Chapter 424
AN ACT
HB 3540
Relating to compensation for loss of value of private real property
resulting from land use regulation; creating new provisions; amending ORS
93.040 and 197.352; appropriating money; and providing that this Act shall be
referred to the people for their approval or rejection.
Be It Enacted by the People of
the State of
SECTION 1. Sections
2, 3 and 5 to 22 of this 2007 Act are added to and made a part of ORS chapter
195.
SECTION 1a. ORS
197.352 is added to and made a part of sections 5 to 22 of this 2007 Act.
DEFINITIONS
SECTION 2. As
used in this section and sections 3 and 5 to 22 of this 2007 Act:
(1) “Acquisition date”
means the date described in section 21 of this 2007 Act.
(2) “Claim” means a
written demand for compensation filed under:
(a) ORS 197.352, as in
effect immediately before the effective date of this 2007 Act; or
(b) Sections 12 to 14 of
this 2007 Act and ORS 197.352, as in effect on and after the effective date of
this 2007 Act.
(3) “Enacted” means
enacted, adopted or amended.
(4) “Fair market value”
means the value of property as determined under section 21b of this 2007 Act.
(5) “Farming practice”
has the meaning given that term in ORS 30.930.
(6) “Federal law” means:
(a) A statute,
regulation, order, decree or policy enacted by a federal entity or by a state
entity acting under authority delegated by the federal government;
(b) A requirement
contained in a plan or rule enacted by a compact entity; or
(c) A requirement contained
in a permit issued by a federal or state agency pursuant to a federal statute
or regulation.
(7) “File” means to
submit a document to a public entity.
(8) “
(9) “Ground water restricted
area” means an area designated as a critical ground water area or as a ground
water limited area by the Water Resources Department or Water Resources
Commission before the effective date of this 2007 Act.
(10) “High-value
farmland” means:
(a) High-value farmland
as described in ORS 215.710 that is land in an exclusive farm use zone or a
mixed farm and forest zone, except that the dates specified in ORS 215.710 (2),
(4) and (6) are the effective date of this 2007 Act.
(b) Land west of U.S.
Highway 101 that is composed predominantly of the following soils in Class III
or IV or composed predominantly of a combination of the soils described in ORS
215.710 (1) and the following soils:
(A) Subclassification
IIIw, specifically Ettersburg Silt Loam and Croftland Silty Clay Loam;
(B) Subclassification
IIIe, specifically Klooqueth Silty Clay Loam and Winchuck Silt Loam; and
(C) Subclassification
IVw, specifically Huffling Silty Clay Loam.
(c) Land that is in an
exclusive farm use zone or a mixed farm and forest zone and that on the date of
adjournment sine die of the 2007 regular session of the Seventy-fourth
Legislative Assembly is:
(A) Within the place of
use for a permit, certificate or decree for the use of water for irrigation
issued by the Water Resources Department;
(B) Within the
boundaries of a district, as defined in ORS 540.505; or
(C) Within the
boundaries of a diking district formed under ORS chapter 551.
(d) Land that contains
not less than five acres planted in wine grapes.
(e) Land that is in an
exclusive farm use zone and that is at an elevation between 200 and 1,000 feet
above mean sea level, with an aspect between 67.5 and 292.5 degrees and a slope
between zero and 15 percent, and that is located within:
(A) The
(B) The
(C) The
(f) Land that is in an
exclusive farm use zone and that is no more than 3,000 feet above mean sea
level, with an aspect between 67.5 and 292.5 degrees and a slope between zero
and 15 percent, and that is located within:
(A) The portion of the
(B) The
(C) The portion of the
(D) The portion of the
Walla Walla Valley viticultural area as described in 27 C.F.R. 9.91 that is
within the State of
(E) The portion of the
(11) “High-value forestland”
means land:
(a) That is in a forest
zone or a mixed farm and forest zone, that is located in western Oregon and
composed predominantly of soils capable of producing more than 120 cubic feet
per acre per year of wood fiber and that is capable of producing more than
5,000 cubic feet per year of commercial tree species; or
(b) That is in a forest
zone or a mixed farm and forest zone, that is located in eastern Oregon and
composed predominantly of soils capable of producing more than 85 cubic feet
per acre per year of wood fiber and that is capable of producing more than
4,000 cubic feet per year of commercial tree species.
(12) “Home site approval”
means approval of the subdivision or partition of property or approval of the
establishment of a dwelling on property.
(13) “Just compensation”
means:
(a) Relief under
sections 5 to 11 of this 2007 Act for land use regulations enacted on or before
January 1, 2007; and
(b) Relief under
sections 12 to 14 of this 2007 Act for land use regulations enacted after
January 1, 2007.
(14) “Land use
regulation” means:
(a) A statute that
establishes a minimum lot or parcel size;
(b) A provision in ORS
227.030 to 227.300, 227.350, 227.400, 227.450 or 227.500 or in ORS chapter 215
that restricts the residential use of private real property;
(c) A provision of a
city comprehensive plan, zoning ordinance or land division ordinance that
restricts the residential use of private real property zoned for residential
use;
(d) A provision of a
county comprehensive plan, zoning ordinance or land division ordinance that
restricts the residential use of private real property;
(e) A provision of the
Oregon Forest Practices Act or an administrative rule of the State Board of
Forestry that regulates a forest practice and that implements the Oregon Forest
Practices Act;
(f) ORS 561.191, a
provision of ORS 568.900 to 568.933 or an administrative rule of the State
Department of Agriculture that implements ORS 561.191 or 568.900 to 568.933;
(g) An administrative
rule or goal of the Land Conservation and Development Commission; or
(h) A provision of a
Metro functional plan that restricts the residential use of private real
property.
(15) “Measure 37 permit”
means a final decision by Metro, a city or a county to authorize the development,
subdivision or partition or other use of property pursuant to a waiver.
(16) “Owner” means:
(a) The owner of fee
title to the property as shown in the deed records of the county where the
property is located;
(b) The purchaser under
a land sale contract, if there is a recorded land sale contract in force for
the property; or
(c) If the property is
owned by the trustee of a revocable trust, the settlor of a revocable trust,
except that when the trust becomes irrevocable only the trustee is the owner.
(17) “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.
(18) “Protection of
public health and safety” means a law, rule, ordinance, order, policy, permit
or other governmental authorization that restricts a use of property in order
to reduce the risk or consequence of fire, earthquake, landslide, flood, storm,
pollution, disease, crime or other natural or human disaster or threat to
persons or property including, but not limited to, building and fire codes,
health and sanitation regulations, solid or hazardous waste regulations and
pollution control regulations.
(19) “Public entity”
means the state, Metro, a county or a city.
(20) “Urban growth
boundary” has the meaning given that term in ORS 195.060.
(21) “Waive” or “waiver”
means an action or decision of a public entity to modify, remove or not apply
one or more land use regulations under sections 5 to 22 of this 2007 Act or ORS
197.352, as in effect immediately before the effective date of this 2007 Act,
to allow the owner to use property for a use permitted when the owner acquired
the property.
(22) “Zoned for
residential use” means zoning that has as its primary purpose single-family
residential use.
LEGISLATIVE POLICY
ON FAIRNESS TO PROPERTY OWNERS
SECTION 3. (1)
The Legislative Assembly finds that:
(a) In some situations,
land use regulations unfairly burden particular property owners.
(b) To address these
situations, it is necessary to amend
(2) The purpose of
sections 5 to 22 of this 2007 Act and the amendments to Ballot Measure 37
(2004) is to modify Ballot Measure 37 (2004) to ensure that Oregon law provides
just compensation for unfair burdens while retaining Oregon’s protections for
farm and forest uses and the state’s water resources.
BALLOT MEASURE 37
SECTION 4.
ORS 197.352 is amended to read:
197.352. [The following provisions are added to and
made a part of ORS chapter 197:]
(1) If a public entity
enacts [or enforces a new land use
regulation or enforces a land use regulation enacted prior to December 2, 2004,
that restricts] one or more land use regulations that restrict the residential
use of private real property or [any
interest therein] a farming or forest practice and [has the effect of reducing] that
reduce the fair market value of the property, [or any interest therein,] then the owner of the property shall be [paid just compensation] entitled to
just compensation from the public entity that enacted the land use regulation
or regulations as provided in sections 12 to 14 of this 2007 Act.
(2) Just compensation under
sections 12 to 14 of this 2007 Act shall be [equal to] based on the reduction in the fair market value of
the [affected] property [interest] resulting from [enactment or enforcement of] the land
use regulation [as of the date the owner
makes written demand for compensation under this section].
(3) Subsection (1) of
this section shall not apply to land use regulations that were enacted prior
to the claimant’s acquisition date or to land use regulations:
[(A)] (a) Restricting or prohibiting activities commonly and
historically recognized as public nuisances under common law[. This subsection shall be construed
narrowly in favor of a finding of compensation under this section];
[(B)] (b) 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];
[(C)] (c) To the extent the land use regulation is required
to comply with federal law; or
[(D)] (d) Restricting or prohibiting the use of a property
for the purpose of selling pornography or performing nude dancing. [Nothing in this subsection, however, is
intended to affect or alter rights provided by the
[(E) 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.]
[(4) Just compensation under subsection (1) of this section shall be due
the owner of the property if the land use regulation continues to be enforced
against the property 180 days after the owner of the property makes written
demand for compensation under this section to the public entity enacting or
enforcing the land use regulation.]
[(5) For claims arising from land use regulations enacted prior to
December 2, 2004, written demand for compensation under subsection (4) shall be
made within two years of December 2, 2004, or the date the public entity
applies the land use regulation as an approval criteria to an application
submitted by the owner of the property, whichever is later. For claims arising
from land use regulations enacted after December 2, 2004, written demand for
compensation under subsection (4) shall be made within two years of the
enactment of the land use regulation, or the date the owner of the property
submits a land use application in which the land use regulation is an approval
criteria, whichever is later.]
[(6) If a land use regulation continues to apply to the subject property
more than 180 days after the present owner of the property has made written demand
for compensation under this section, the present owner of the property, or any
interest therein, shall have a cause of action for compensation under this
section in the circuit court in which the real property is located, and the
present owner of the real property shall be entitled to reasonable attorney
fees, expenses, costs, and other disbursements reasonably incurred to collect
the compensation.]
(4)(a) Subsection
(3)(a) of this section shall be construed narrowly in favor of granting just
compensation under this section. Nothing in subsection (3) of this section is
intended to affect or alter rights provided by the
(b) Subsection (3)(b) of
this section does not apply to any farming or forest practice regulation that
is enacted after January 1, 2007, unless the primary purpose of the regulation
is the protection of human health and safety.
(c) Subsection (3)(c) of
this section does not apply to any farming or forest practice regulation that
is enacted after January 1, 2007, unless the public entity enacting the
regulation has no discretion under federal law to decline to enact the
regulation.
[(7)] (5) A [metropolitan
service district, city, or county, or state agency] public entity
may adopt or apply procedures for the processing of claims under [this section, but in no event shall these
procedures act as a prerequisite to the filing of a compensation claim under
subsection (6) of this section, nor shall the failure of an owner of property
to file an application for a land use permit with the local government serve as
grounds for dismissal, abatement, or delay of a compensation claim under
subsection (6) of this section] sections 12 to 24 of this 2007 Act.
[(8)] (6) [Notwithstanding
any other state statute or the availability of funds under subsection (10) of
this section, in lieu of payment of just compensation under this section, the
governing body responsible for enacting] The public entity that enacted
the land use regulation [may modify,
remove, or not to apply the land use regulation or land use regulations to
allow the owner to use the property for a use permitted at the time the owner
acquired the property] that gives rise to a claim under subsection (1)
of this section shall provide just compensation as required under sections 12
to 24 of this 2007 Act.
[(9)] (7) A decision by a [governing body under this section shall not be considered a] public
entity that an owner qualifies for just compensation under sections 5 to 22 of
this 2007 Act and a decision by a public entity on the nature and extent of
that compensation are not land use [decision
as defined in ORS 197.015 (11)] decisions.
[(10) Claims made under this section shall be paid from funds, if any,
specifically allocated by the legislature, city, county, or metropolitan
service district for payment of claims under this section. Notwithstanding the
availability of funds under this subsection, a metropolitan service district,
city, county, or state agency shall have discretion to use available funds to
pay claims or to modify, remove, or not apply a land use regulation or land use
regulations pursuant to subsection (6) of this section. If a claim has not been
paid within two years from the date on which it accrues, the owner shall be
allowed to use the property as permitted at the time the owner acquired the
property.]
[(11) Definitions - for purposes of this section:]
[(A) “Family member” shall include 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.]
[(B) “Land use regulation” shall include:]
[(i) Any statute regulating the use of land or any interest therein;]
[(ii) Administrative rules and goals of the Land Conservation and
Development Commission;]
[(iii) Local government comprehensive plans, zoning ordinances, land
division ordinances, and transportation ordinances;]
[(iv) Metropolitan service district regional framework plans, functional
plans, planning goals and objectives; and]
[(v) Statutes and administrative rules regulating farming and forest
practices.]
[(C) “Owner” is the present owner of the property, or any interest
therein.]
[(D) “Public entity” shall include the state, a metropolitan service
district, a city, or a county.]
[(12)] (8) The [remedy]
remedies created by [this section
is] sections 5 to 22 of this 2007 Act are in addition to any other
remedy under the Oregon or United States [Constitutions]
Constitution, and [is] are
not intended to modify or replace any [other]
constitutional remedy.
[(13)] (9) If any portion or portions of this section are
declared invalid by a court of competent jurisdiction, the remaining portions
of this section shall remain in full force and effect.
BALLOT MEASURE 37 CLAIMS
MADE ON OR BEFORE THE DATE
OF ADJOURNMENT SINE DIE
OF THE 2007 REGULAR SESSION
OF THE SEVENTY-FOURTH
LEGISLATIVE ASSEMBLY
(Generally)
SECTION 5. A
claimant that filed a claim under ORS 197.352 on or before the date of
adjournment sine die of the 2007 regular session of the Seventy-fourth
Legislative Assembly is entitled to just compensation as provided in:
(1) Section 6 or 7 of
this 2007 Act, at the claimant’s election, if the property described in the
claim is located entirely outside any urban growth boundary and entirely
outside the boundaries of any city;
(2) Section 9 of this
2007 Act if the property described in the claim is located, in whole or in
part, within an urban growth boundary; or
(3) A waiver issued
before the effective date of this 2007 Act to the extent that the claimant’s
use of the property complies with the waiver and the claimant has a common law
vested right on the effective date of this 2007 Act to complete and continue
the use described in the waiver.
(Claims Relating to Property
Outside Urban Growth Boundaries)
SECTION 6. (1)
A claimant that filed a claim under ORS 197.352 on or before the date of
adjournment sine die of the 2007 regular session of the Seventy-fourth
Legislative Assembly is eligible for three home site approvals on the property
if the requirements of this section and sections 8 and 11 of this 2007 Act are
met. The procedure for obtaining home site approvals under this section is set
forth in section 8 of this 2007 Act.
(2) The number of lots,
parcels or dwellings that may be approved for property under this section may
not exceed the lesser of:
(a) The number of lots,
parcels or dwellings described in a waiver issued by the state before the
effective date of this 2007 Act or, if a waiver was not issued, the number of lots,
parcels or dwellings described in the claim filed with the state; or
(b) Three, except that
if there are existing dwellings on the property or the property contains more
than one lot or parcel, the number of lots, parcels or dwellings that may be
established is reduced so that the combined number of lots, parcels or
dwellings, including existing lots, parcels or dwellings located on or
contained within the property, does not exceed three.
(3) Notwithstanding
subsection (2) of this section, a claimant that otherwise qualifies for relief
under this section may establish at least one additional lot, parcel or
dwelling on the property. In addition, if the number of lots, parcels or
dwellings described in a waiver issued by the state before the effective date
of this 2007 Act or, if a waiver was not issued, the number of lots, parcels or
dwellings described in the claim filed with the state is more than three, the
claimant may amend the claim to reduce the number to no more than three by
filing notice of the amendment with the form required by section 8 of this 2007
Act.
(4) If a claim was for a
use other than a subdivision or partition of property, or other than approval
for establishing a dwelling on the property, the claimant may amend the claim
to seek one or more home site approvals under this section. A person amending a
claim under this subsection may not make a claim under section 7 of this 2007
Act.
(5) If multiple claims
were filed for the same property, the number of lots, parcels or dwellings that
may be established for purposes of subsection (2)(a) of this section is the
number of lots, parcels or dwellings in the most recent waiver issued by the
state before the effective date of this 2007 Act or, if a waiver was not
issued, the most recent claim filed with the state, but not more than three in
any case.
(6) To qualify for a
home site approval under this section, the claimant must have filed a claim for
the property with both the state and the county in which the property is
located. In addition, regardless of whether a waiver was issued by the state or
the county before the effective date of this 2007 Act, to qualify for a home
site approval under this section the claimant must establish that:
(a) The claimant is an
owner of the property;
(b) All owners of the
property have consented in writing to the claim;
(c) The property is
located entirely outside any urban growth boundary and entirely outside the
boundaries of any city;
(d) One or more land use
regulations prohibit establishing the lot, parcel or dwelling;
(e) The establishment of
the lot, parcel or dwelling is not prohibited by a land use regulation
described in ORS 197.352 (3); and
(f) On the claimant’s
acquisition date, the claimant lawfully was permitted to establish at least the
number of lots, parcels or dwellings on the property that are authorized under
this section.
(7) If the claim was
filed after December 4, 2006, to issue a home site approval under this section,
the Department of Land Conservation and Development must verify that the claim
was filed in compliance with the applicable rules of the Land Conservation and
Development Commission and the Oregon Department of Administrative Services.
(8) Except as provided
in section 11 of this 2007 Act, if the Department of Land Conservation and
Development has issued a final order with a specific number of home site
approvals for a property under this section, the claimant may seek other
governmental authorizations required by law for the partition or subdivision of
the property or for the development of any dwelling authorized, and a land use
regulation enacted by the state or county that has the effect of prohibiting
the partition or subdivision, or the dwelling, does not apply to the review of
those authorizations.
SECTION 7. (1)
A claimant that filed a claim under ORS 197.352 on or before the date of
adjournment sine die of the 2007 regular session of the Seventy-fourth
Legislative Assembly for property that is not high-value farmland or high-value
forestland and that is not in a ground water restricted area is eligible for
four to 10 home site approvals for the property if the requirements of this
section and sections 8 and 11 of this 2007 Act are met. The procedure for
obtaining home site approvals under this section is set forth in section 8 of
this 2007 Act.
(2) The number of lots,
parcels or dwellings that may be established on the property under this section
may not exceed the lesser of:
(a) The number of lots,
parcels or dwellings described in a waiver issued by the state before the
effective date of this 2007 Act or, if a waiver was not issued, the number of
lots, parcels or dwellings described in the claim filed with the state;
(b) 10, except that if
there are existing dwellings on the property or the property contains more than
one lot or parcel, the number of lots, parcels or dwellings that may be
established is reduced, so that the combined number of lots, parcels or
dwellings, including existing lots, parcels or dwellings located on or
contained within the property, does not exceed 10; or
(c) The number of home
site approvals with a total value that represents just compensation for the
reduction in fair market value caused by the enactment of one or more land use
regulations that were the basis for the claim, as set forth in subsection (6)
of this section.
(3) If the number of
lots, parcels or dwellings described in a waiver issued by the state before the
effective date of this 2007 Act or, if a waiver was not issued, the number of
lots, parcels or dwellings described in the claim filed with the state is more
than 10, the claimant may amend the claim to reduce the number to no more than
10 by filing notice of the amendment with the form required by section 8 of
this 2007 Act.
(4) If multiple claims
were filed for the same property, the number of lots, parcels or dwellings that
may be established for purposes of subsection (2)(a) of this section is the
number of lots, parcels or dwellings in the most recent waiver issued by the
state before the effective date of this 2007 Act or, if a waiver was not
issued, the most recent claim filed with the state, but not more than 10 in any
case.
(5) To qualify for a
home site approval under this section, the claimant must have filed a claim for
the property with both the state and the county in which the property is
located. In addition, regardless of whether a waiver was issued by the state or
the county before the effective date of this 2007 Act to qualify for a home
site approval under this section, the claimant must establish that:
(a) The claimant is an
owner of the property;
(b) All owners of the
property have consented in writing to the claim;
(c) The property is
located entirely outside any urban growth boundary and entirely outside the
boundaries of any city;
(d) One or more land use
regulations prohibit establishing the lot, parcel or dwelling;
(e) The establishment of
the lot, parcel or dwelling is not prohibited by a land use regulation
described in ORS 197.352 (3);
(f) On the claimant’s
acquisition date, the claimant lawfully was permitted to establish at least the
number of lots, parcels and dwellings on the property that are authorized under
this section; and
(g) The enactment of one
or more land use regulations, other than land use regulations described in ORS
197.352 (3), that are the basis for the claim caused a reduction in the fair
market value of the property that is equal to or greater than the fair market
value of the home site approvals that may be established on the property under
subsection (2) of this section, with the reduction in fair market value
measured as set forth in subsection (6) of this section.
(6) The reduction in the
fair market value of the property caused by the enactment of one or more land
use regulations that were the basis for the claim is equal to the decrease, if
any, in the fair market value of the property from the date that is one year
before the enactment of the land use regulation to the date that is one year
after the enactment, plus interest. If the claim is based on the enactment of
more than one land use regulation enacted on different dates, the reduction in
the fair market value of the property caused by each regulation shall be
determined separately and the values added together to calculate the total
reduction in fair market value. The reduction in fair market value shall be
adjusted by any ad valorem property taxes not paid as a result of any special
assessment of the property under ORS 308A.050 to 308A.128, 321.257 to 321.390,
321.700 to 321.754 or 321.805 to 321.855, plus interest, offset by any
severance taxes paid by the claimant and by any recapture of potential
additional tax liability that the claimant has paid or will pay for the
property if the property is disqualified from special assessment under ORS
308A.703. Interest shall be computed under this subsection using the average
interest rate for a one-year United States Government Treasury Bill on December
31 of each year of the period between the date the land use regulation was
enacted and the date the claim was filed, compounded annually on January 1 of
each year of the period.
(7) For the purposes of
subsection (6) of this section, a claimant must provide an appraisal showing
the fair market value of the property one year before the enactment of the land
use regulation that was the basis for the claim and the fair market value of
the property one year after the enactment. The appraisal also must show the
fair market value of each home site approval to which the claimant is entitled
under section 6 (2) of this 2007 Act, along with evidence of any ad valorem
property taxes not paid, any severance taxes paid and any recapture of
additional tax liability that the claimant has paid or will pay for the
property if the property is disqualified from special assessment under ORS
308A.703. The actual and reasonable cost of preparing the claim, including the
cost of the appraisal, not to exceed $5,000, may be added to the calculation of
the reduction in fair market value under subsection (6) of this section. The
appraisal must:
(a) Be prepared by a
person certified under ORS chapter 674 or a person registered under ORS chapter
308;
(b) Comply with the
Uniform Standards of Professional Appraisal Practice, as authorized by the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989; and
(c) Expressly determine
the highest and best use of the property at the time the land use regulation
was enacted.
(8) Relief may not be
granted under this section if the highest and best use of the property was not
residential use at the time the land use regulation was enacted.
(9) If the claim was
filed after December 4, 2006, to issue a home site approval under this section,
the Department of Land Conservation and Development must verify that the claim
was filed in compliance with the applicable rules of the Land Conservation and
Development Commission and the Oregon Department of Administrative Services.
(10) Except as provided
in section 11 of this 2007 Act, if the Department of Land Conservation and
Development has issued a final order with a specific number of home site
approvals for the property under this section, the claimant may seek other
governmental authorizations required by law for the subdivision or partition of
the property or for the development of any dwelling authorized, and a land use
regulation enacted by the state or county that has the effect of prohibiting
the subdivision or partition, or the dwelling, does not apply to the review of
those authorizations.
SECTION 8. (1)
No later than 120 days after the effective date of this 2007 Act, the
Department of Land Conservation and Development shall send notice to all the
following claimants that filed a claim for property outside an urban growth
boundary:
(a) A claimant whose
claim was denied by the state before the effective date of this 2007 Act, but
who may become eligible for just compensation because of section 21 (2) of this
2007 Act or any other provision of sections 5 to 22 of this 2007 Act;
(b) A claimant whose
claim was approved by the state before the effective date of this 2007 Act; and
(c) A claimant whose
claim has not been approved or denied by the state before the effective date of
this 2007 Act.
(2) The notice required
by subsection (1) of this section must:
(a) Explain the claimant’s
options if the claimant wishes to subdivide, partition or establish a dwelling
on the property under sections 5 to 22 of this 2007 Act;
(b) Identify any
information that the claimant must file; and
(c) Provide a form for
the claimant’s use.
(3) A claimant must
choose whether to proceed under section 6 or 7 of this 2007 Act by filing the
form provided by the department within 90 days after the date the department
mails the notice and form required under subsection (1) of this section. In
addition, the claimant must file any information required in the notice. If the
claimant fails to file the form within 90 days after the date the department
mails the notice, the claimant is not entitled to relief under section 6 or 7
of this 2007 Act.
(4) The department shall
review the claims in the order in which the department receives the forms
required under subsection (3) of this section. In addition to reviewing the
claim, the department shall review the department’s record on the claim, the
form required under subsection (3) of this section, any new material from the
claimant and any other information required by sections 5 to 22 of this 2007
Act to ensure that the requirements of this section and section 6 or 7 of this
2007 Act are met. The department shall provide a copy of the material submitted
by the claimant to the county where the property is located and consider
written comments from the county that are timely filed with the department. If
the department determines that the only land use regulations that restrict the
claimant’s use of the property are regulations that were enacted by the county,
the department shall transfer the claim to the county where the property is
located and the claim shall be processed by the county in the same manner as
prescribed by this section for the processing of claims by the department. The
county must consider any written comments from the department that are timely
filed with the county.
(5) If the claimant
elects to obtain relief under section 7 of this 2007 Act, the claimant must
file an appraisal that establishes the reduction in the fair market value of
the property as required by section 7 (6) of this 2007 Act. The actual and
reasonable cost of preparing the claim, including the cost of the appraisal,
not to exceed $5,000, may be added to the calculation of the reduction in fair
market value under section 7 (6) of this 2007 Act. The appraisal must be filed
with the department or, if the claim is being processed by the county, with the
county within 180 days after the date the claimant files the election to obtain
relief under section 7 of this 2007 Act. A claimant that elects to obtain
relief under section 7 of this 2007 Act may change that election to obtain
relief under section 6 of this 2007 Act, but only if the claimant provides
written notice of the change on or before the date the appraisal is filed. If a
county is processing the claim, the county may impose a fee for the review of a
claim under section 7 of this 2007 Act in an amount that does not exceed the
actual and reasonable cost of the review.
(6) The department or
the county shall review claims as quickly as possible, consistent with careful
review of the claim. The department shall report to the Joint Legislative Audit
Committee on or before March 31, 2008, concerning the department’s progress and
the counties’ progress in completing review of claims under sections 6 and 7 of
this 2007 Act.
(7) The department’s
final order and a county’s final decision on a claim under section 6 or 7 of
this 2007 Act must either deny the claim or approve the claim. If the order or
decision approves the claim, the order or decision must state the number of
home site approvals issued for the property and may contain other terms that
are necessary to ensure that the use of the property is lawful.
(Claims Relating to Property
Within Urban Growth Boundaries)
SECTION 9. (1)
A claimant that filed a claim under ORS 197.352 on or before the date of
adjournment sine die of the 2007 regular session of the Seventy-fourth
Legislative Assembly for property located, in whole or in part, within an urban
growth boundary may establish one to 10 single-family dwellings on the portion
of the property located within the urban growth boundary.
(2) The number of
single-family dwellings that may be established on the portion of the property
located within the urban growth boundary under this section may not exceed the
lesser of:
(a) The number of
single-family dwellings described in a waiver issued by Metro, a city or a
county before the effective date of this 2007 Act or, if a waiver was not
issued, the number described in the claim filed with Metro, a city or a county;
(b) 10, except that if
there are existing dwellings on the property, the number of single-family
dwellings that may be established is reduced so that the maximum number of
dwellings, including existing dwellings located on the property, does not
exceed 10; or
(c) The number of
single-family dwellings the total value of which represents just compensation
for the reduction in fair market value caused by the enactment of one or more
land use regulations that were the basis for the claim, as set forth in
subsection (6) of this section.
(3) If the number of
single-family dwellings described in a waiver issued by Metro, a city or a
county before the effective date of this 2007 Act or, if a waiver was not
issued, the number described in the claim filed with Metro, a city or a county
is more than 10, the claimant may amend the claim to reduce the number to no
more than 10 by filing notice of the amendment with the information required by
section 10 of this 2007 Act.
(4) If multiple claims
were filed for the same property, the number of single-family dwellings that
may be established for purposes of subsection (2)(a) of this section is the
number in the most recent waiver issued by Metro, a city or a county before the
effective date of this 2007 Act or, if a waiver was not issued, the most recent
claim filed with Metro, a city or a county, but not more than 10 in any case.
(5) To qualify for the
relief provided by this section, the claimant must have filed a claim for the
property with the city or county in which the property is located. In addition,
regardless of whether a waiver was issued by Metro, a city or a county before
the effective date of this 2007 Act, to qualify for relief under this section,
the claimant must establish that:
(a) The claimant is an
owner of the property;
(b) All owners of the
property have consented in writing to the claim;
(c) The property is
located, in whole or in part, within an urban growth boundary;
(d) On the claimant’s
acquisition date, the claimant lawfully was permitted to establish at least the
number of dwellings on the property that are authorized under this section;
(e) The property is
zoned for residential use;
(f) One or more land use
regulations prohibit establishing the single-family dwellings;
(g) The establishment of
the single-family dwellings is not prohibited by a land use regulation
described in ORS 197.352 (3);
(h) The land use
regulation described in paragraph (f) of this subsection was enacted after the
date the property, or any portion of the property, was brought into the urban
growth boundary;
(i) If the property is
located within the boundaries of Metro, the land use regulation that is the
basis for the claim was enacted after the date the property was included within
the boundaries of Metro;
(j) If the property is
located within a city, the land use regulation that is the basis for the claim
was enacted after the date the property was annexed to the city; and
(k) The enactment of one
or more land use regulations, other than land use regulations described in ORS
197.352 (3), that are the basis of the claim caused a reduction in the fair
market value of the property, as determined under subsection (6) of this
section, that is equal to or greater than the fair market value of the
single-family dwellings that may be established on the property under
subsection (2) of this section.
(6) The reduction in the
fair market value of the property caused by the enactment of one or more land
use regulations that were the basis for the claim is equal to the decrease, if
any, in the fair market value of the property from the date that is one year
before the enactment of the land use regulation to the date that is one year
after the enactment, plus interest. If the claim is based on the enactment of
more than one land use regulation enacted on different dates, the reduction in
the fair market value of the property caused by each regulation shall be determined
separately and the values added together to calculate the total reduction in
fair market value. The reduction in fair market value shall be adjusted by any
ad valorem property taxes not paid as a result of any special assessment of the
property under ORS 308A.050 to 308A.128, 321.257 to 321.390, 321.700 to 321.754
or 321.805 to 321.855, plus interest, offset by any severance taxes paid by the
claimant and by any recapture of potential additional tax liability that the
claimant has paid or will pay for the property if the property is disqualified
from special assessment under ORS 308A.703. Interest shall be computed under
this subsection using the average interest rate for a one-year United States
Government Treasury Bill on December 31 of each year of the period between the
date the land use regulation was enacted and the date the claim was filed,
compounded annually on January 1 of each year of the period.
(7) For the purposes of
subsection (6) of this section, a claimant must provide an appraisal showing
the fair market value of the property one year before the enactment of the land
use regulation that was the basis for the claim and the fair market value of
the property one year after the enactment. The appraisal also must show the
fair market value of each single-family dwelling to which the claimant is
entitled under subsection (2) of this section, along with evidence of any ad
valorem property taxes not paid, any severance taxes paid and any recapture of
additional tax liability that the owner has paid or will pay for the property
if the property is disqualified from special assessment under ORS 308A.703. The
actual and reasonable cost of preparing the claim, including the cost of the
appraisal, not to exceed $5,000, may be added to the calculation of the
reduction in fair market value under section 7 (6) of this 2007 Act. The
appraisal must:
(a) Be prepared by a
person certified under ORS chapter 674 or a person registered under ORS chapter
308;
(b) Comply with the
Uniform Standards of Professional Appraisal Practice, as authorized by the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989; and
(c) Expressly determine
the highest and best use of the property at the time the land use regulation
was enacted.
(8) Relief may not be
granted under this section if the highest and best use of the property was not
residential use at the time the land use regulation was enacted.
(9) When Metro, a city
or a county has issued a final decision authorizing one or more single-family
dwellings under this section on the portion of the property located within the
urban growth boundary, the claimant may seek other governmental authorizations
required by law for that use, and a land use regulation enacted by a public
entity that has the effect of prohibiting the use does not apply to the review
of those authorizations, except as provided in section 11 of this 2007 Act. If
Metro is reviewing a claim for a property, and a city or a county is reviewing
a claim for the same property, Metro and the city or county shall coordinate
the review and decisions and may:
(a) Provide that one of
the public entities be principally responsible for the review; and
(b) Provide that the
decision of each of the public entities is contingent on the decision of the other
public entity.
(10) The only types of
land use that are authorized by this section are the subdivision or partition
of land for one or more single-family dwellings, or the establishment of one or
more single-family dwellings on land on which the dwellings would not otherwise
be allowed.
SECTION 10. (1)
If Metro, a city or a county issued a waiver before the effective date of this
2007 Act for property located, in whole or in part, within an urban growth
boundary, the public entity that issued the waiver must review the claim, the
record on the claim and the waiver to determine whether the claimant is
entitled to relief under section 9 of this 2007 Act. If the public entity that
issued the waiver lacks information needed to determine whether the claimant is
entitled to relief, the public entity shall issue a written request to the
claimant for the required information. The claimant must file the required
information within 90 days after receiving the request. If the claimant does
not file the information, the public entity shall review the claim based on the
information that is available. The public entity shall complete a tentative
review no later than 240 days after the effective date of this 2007 Act. The
public entity shall provide written notice to the claimant, the Department of
Land Conservation and Development and any other person entitled to notice of
the tentative determination as to whether the claimant qualifies for relief
under section 9 of this 2007 Act and, if so, the specific number of single-family
dwellings that the public entity proposes to authorize. The notice must state
that the recipient has 15 days to submit evidence or arguments in response to
the tentative determination, after which the public entity shall make a final
determination. A public entity shall make the final determination under this
subsection within 300 days after the effective date of this 2007 Act.
(2) If Metro, a city or
a county has not made a final decision before the effective date of this 2007
Act on a claim filed for property located, in whole or in part, within an urban
growth boundary, the public entity with which the claim was filed shall send
notice to the claimant within 90 days after the effective date of this 2007
Act. The notice must:
(a) Explain that the
claimant is entitled to seek relief under section 9 of this 2007 Act;
(b) Identify the
information that the claimant must file; and
(c) Provide a form for
the claimant’s use.
(3) Within 120 days
after the date the public entity mails notice under subsection (2) of this
section, a claimant must notify the public entity if the claimant intends to
continue the claim and must file the information required in the notice. If the
claimant fails to file the notice and required information with the public entity
within 120 days after the date the public entity mails the notice, the claimant
is not entitled to relief under section 9 of this 2007 Act.
(4) A public entity that
receives a notice from a claimant under subsection (3) of this section shall
review the claim, the record on the claim, the notice received from the
claimant and the information required under subsection (3) of this section to
determine whether the claim demonstrates that the requirements of section 9 of
this 2007 Act are satisfied. The public entity shall complete a tentative
review no later than 120 days after receipt of the notice from the claimant and
shall provide written notice to the claimant, the department and any other
person entitled to notice of the tentative determination as to whether the
claimant qualifies for relief under section 9 of this 2007 Act and, if so, the
specific number of single-family dwellings that the public entity proposes to
authorize. The notice must state that the recipient has 15 days to submit
evidence or arguments in response to the tentative determination, after which
the public entity shall make a final determination. A public entity shall make
the final determination under this subsection within 180 days after receipt of
the notice from the claimant.
(5) If a claimant filed
a claim that is subject to this section after December 4, 2006, the claim must
have included a copy of a final land use decision by the city or county with
land use jurisdiction over the property that denied an application by the claimant
for the residential use described in the claim. If the claim was filed after
December 4, 2006, and did not include a final land use decision denying the
residential use described in the claim, the claimant is not entitled to relief
under section 9 of this 2007 Act.
(Development Standards; Transferability)
SECTION 11. (1)
A subdivision or partition of property, or the establishment of a dwelling on
property, authorized under sections 5 to 11 of this 2007 Act must comply with
all applicable standards governing the siting or development of the dwelling,
lot or parcel including, but not limited to, the location, design, construction
or size of the dwelling, lot or parcel. However, the standards must not be
applied in a manner that has the effect of prohibiting the establishment of the
dwelling, lot or parcel authorized under sections 5 to 11 of this 2007 Act
unless the standards are reasonably necessary to avoid or abate a nuisance, to
protect public health or safety or to carry out federal law.
(2) Before beginning
construction of any dwelling authorized under section 6 or 7 of this 2007 Act,
the owner must comply with the requirements of ORS 215.293 if the property is
in an exclusive farm use zone, a forest zone or a mixed farm and forest zone.
(3)(a) A city or county
may approve the creation of a lot or parcel to contain a dwelling authorized
under sections 5 to 11 of this 2007 Act. However, a new lot or parcel located
in an exclusive farm use zone, a forest zone or a mixed farm and forest zone
may not exceed:
(A) Two acres if the lot
or parcel is located on high-value farmland, on high-value forestland or on
land within a ground water restricted area; or
(B) Five acres if the
lot or parcel is not located on high-value farmland, on high-value forestland
or on land within a ground water restricted area.
(b) If the property is
in an exclusive farm use zone, a forest zone or a mixed farm and forest zone,
the new lots or parcels created must be clustered so as to maximize suitability
of the remnant lot or parcel for farm or forest use.
(4) If an owner is
authorized to subdivide or partition more than one property, or to establish
dwellings on more than one property, under sections 5 to 11 of this 2007 Act
and the properties are in an exclusive farm use zone, a forest zone or a mixed
farm and forest zone, the owner may cluster some or all of the dwellings, lots
or parcels on one of the properties if that property is less suitable than the
other properties for farm or forest use. If one of the properties is zoned for
residential use, the owner may cluster some or all of the dwellings, lots or
parcels that would have been located in an exclusive farm use zone, a forest
zone or a mixed farm and forest zone on the property zoned for residential use.
(5) An owner is not
eligible for more than 20 home site approvals under sections 5 to 11 of this
2007 Act, regardless of how many properties that person owns or how many claims
that person has filed.
(6) An authorization to
partition or subdivide the property, or to establish dwellings on the property,
granted under section 6, 7 or 9 of this 2007 Act runs with the property and may
be either transferred with the property or encumbered by another person without
affecting the authorization. There is no time limit on when an authorization
granted under section 6, 7 or 9 of this 2007 Act must be carried out, except
that once the owner who obtained the authorization conveys the property to a
person other than the owner’s spouse or the trustee of a revocable trust in
which the owner is the settlor, the subsequent owner of the property must
create the lots or parcels and establish the dwellings authorized by a waiver
under section 6, 7 or 9 of this 2007 Act within 10 years of the conveyance. In
addition:
(a) A lot or parcel lawfully
created based on an authorization under section 6, 7 or 9 of this 2007 Act
remains a discrete lot or parcel, unless the lot or parcel lines are vacated or
the lot or parcel is further divided, as provided by law; and
(b) A dwelling or other
residential use of the property based on an authorization under section 6, 7 or
9 of this 2007 Act is a permitted use and may be established or continued by
the claimant or a subsequent owner, except that once the claimant conveys the
property to a person other than the claimant’s spouse or the trustee of a
revocable trust in which the claimant is the settlor, the subsequent owner must
establish the dwellings or other residential use authorized under section 6, 7
or 9 of this 2007 Act within 10 years of the conveyance.
(7) When relief has been
claimed under sections 5 to 11 of this 2007 Act:
(a) Additional relief is
not due; and
(b) An additional claim
may not be filed, compensation is not due and a waiver may not be issued with
regard to the property under sections 5 to 22 of this 2007 Act or ORS 197.352
as in effect immediately before the effective date of this 2007 Act, except
with respect to a land use regulation enacted after January 1, 2007.
(8) A person that is
eligible to be a holder as defined in ORS 271.715 may acquire the rights to
carry out a use of land authorized under sections 5 to 11 of this 2007 Act from
a willing seller in the manner provided by ORS 271.715 to 271.795. Metro,
cities and counties may enter into cooperative agreements under ORS chapter 195
to establish a system for the purchase and sale of severable development
interests as described in ORS 94.531. A system established under this
subsection may provide for the transfer of severable development interests
between the jurisdictions of the public entities that are parties to the
agreement for the purpose of allowing development to occur in a location that
is different from the location in which the development interest arises.
(9) If a claimant is an
individual, the entitlement to prosecute the claim under section 6, 7 or 9 of
this 2007 Act and an authorization to use the property provided by a waiver
under section 6, 7 or 9 of this 2007 Act:
(a) Is not affected by
the death of the claimant if the death occurs on or after the effective date of
this 2007 Act; and
(b) Passes to the person
that acquires the property by devise or by operation of law.
BALLOT MEASURE 37 CLAIMS
MADE AFTER THE DATE
OF ADJOURNMENT SINE DIE
OF THE 2007 REGULAR SESSION
OF THE SEVENTY-FOURTH
LEGISLATIVE ASSEMBLY
(Generally)
SECTION 12. (1)
A person may file a claim for just compensation under sections 12 to 14 of this
2007 Act and ORS 197.352 after the date of adjournment sine die of the 2007
regular session of the Seventy-fourth Legislative Assembly if:
(a) The person is an
owner of the property and all owners of the property have consented in writing
to the filing of the claim;
(b) The person’s desired
use of the property is a residential use or a farming or forest practice;
(c) The person’s desired
use of the property is restricted by one or more land use regulations enacted
after January 1, 2007; and
(d) 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.
(2) For purposes of
subsection (1) of this section, the reduction in the fair market value of the
property caused by the enactment of one or more land use regulations that are
the basis for the claim is equal to the decrease, if any, in the fair market
value of the property from the date that is one year before the enactment of
the land use regulation to the date that is one year after the enactment, plus
interest. If the claim is based on the enactment of more than one land use
regulation enacted on different dates, the reduction in the fair market value
of the property caused by each regulation shall be determined separately and
the values added together to calculate the total reduction in fair market
value. Interest shall be computed under this subsection using the average
interest rate for a one-year United States Government Treasury Bill on December
31 of each year of the period between the date the land use regulation was
enacted and the date the claim was filed, compounded annually on January 1 of
each year of the period. A claimant must provide an appraisal showing the fair
market value of the property one year before the enactment of the land use
regulation and the fair market value of the property one year after the
enactment. The actual and reasonable cost of preparing the claim, including the
cost of the appraisal, not to exceed $5,000, may be added to the calculation of
the reduction in fair market value under this subsection. The appraisal must:
(a) Be prepared by a
person certified under ORS chapter 674 or a person registered under ORS chapter
308;
(b) Comply with the
Uniform Standards of Professional Appraisal Practice, as authorized by the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989; and
(c) Expressly determine
the highest and best use of the property at the time the land use regulation
was enacted.
(3) Relief may not be
granted under this section if the highest and best use of the property at the
time the land use regulation was enacted was not the use that was restricted by
the land use regulation.
(4) If the claimant
establishes that the requirements of subsection (1) of this section are
satisfied and the land use regulation was enacted by Metro, a city or a county,
the public entity must either:
(a) Compensate the
claimant for the reduction in the fair market value of the property; or
(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.
(5) If the claimant
establishes that the requirements of subsection (1) of this section are
satisfied and the land use regulation was enacted by state government, as
defined in ORS 174.111, the state agency that is responsible for administering
the statute, statewide land use planning goal or rule, or the Oregon Department
of Administrative Services if there is no state agency responsible for
administering the statute, goal or rule, must:
(a) Compensate the
claimant for the reduction in the fair market value of the property; or
(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.
(6) A use authorized by
this section has the legal status of a lawful nonconforming use in the same
manner as provided by ORS 215.130. The claimant may carry out a use authorized
by a public entity under this section except that a public entity may waive
only land use regulations that were enacted by the public entity. 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.
(Procedures for Actions on New Claims)
SECTION 13. (1)
A person filing a claim under section 12 of this 2007 Act shall file the claim
in the manner provided by this section. If the property for which the claim is
filed has more than one owner, the claim must be signed by all the owners or
the claim must include a signed statement of consent from each owner. Only one
claim for each property may be filed for each land use regulation.
(2) A claim filed under
section 12 of this 2007 Act must be filed with the public entity that enacted
the land use regulation that is the basis for the claim.
(3) Metro, cities,
counties and the Department of Land Conservation and Development may impose a
fee for the review of a claim filed under section 12 of this 2007 Act in an
amount not to exceed the actual and reasonable cost of reviewing the claim.
(4) A person must file a
claim under section 12 of this 2007 Act within five years after the date the
land use regulation was enacted.
(5) A public entity that
receives a claim filed under section 12 of this 2007 Act must issue a final
determination on the claim within 180 days after the date the claim is
complete, as described in subsection (9) of this section.
(6) If a claim under
section 12 of this 2007 Act is filed with state government, as defined in ORS
174.111, the claim must be filed with the department. If the claim is filed
with Metro, a city or a county, the claim must be filed with the chief
administrative office of the public entity, or with an individual designated by
ordinance, resolution or order of the public entity.
(7) A claim filed under
section 12 of this 2007 Act must be in writing and must include:
(a) The name and address
of each owner;
(b) The address, if any,
and tax lot number, township, range and section of the property;
(c) Evidence of the
acquisition date of the claimant, including the instrument conveying the
property to the claimant and a report from a title company identifying the
person in which title is vested and the claimant’s acquisition date and
describing exceptions and encumbrances to title that are of record;
(d) A citation to the
land use regulation that the claimant believes is restricting the claimant’s
desired use of the property that is adequate to allow the public entity to
identify the specific land use regulation that is the basis for the claim;
(e) A description of the
specific use of the property that the claimant desires to carry out but cannot
because of the land use regulation; and
(f) An appraisal of the
property that complies with section 12 (2) of this 2007 Act.
(8) A claim filed under
section 12 of this 2007 Act must include the fee, if any, imposed by the public
entity with which the claim is filed pursuant to subsection (3) of this
section.
(9) The public entity
shall review a claim filed under section 12 of this 2007 Act to determine
whether the claim complies with the requirements of sections 12 to 14 of this
2007 Act. If the claim is incomplete, the public entity shall notify the
claimant in writing of the information or fee that is missing within 60 days
after receiving the claim and allow the claimant to submit the missing
information or fee. The claim is complete when the public entity receives any
fee required by subsection (8) of this section and:
(a) The missing
information;
(b) Part of the missing
information and written notice from the claimant that the remainder of the
missing information will not be provided; or
(c) Written notice from
the claimant that none of the missing information will be provided.
(10) If a public entity
does not notify a claimant within 60 days after a claim is filed under section
12 of this 2007 Act that information or the fee is missing from the claim, the
claim is deemed complete when filed.
(11) A claim filed under
section 12 of this 2007 Act is deemed withdrawn if the public entity gives
notice to the claimant under subsection (9) of this section and the claimant
does not comply with the requirements of subsection (9) of this section.
SECTION 14. (1)
A public entity that receives a complete claim as described in section 13 of
this 2007 Act shall provide notice of the claim at least 30 days before a
public hearing on the claim or, if there will not be a public hearing, at least
30 days before the deadline for submission of written comments, to:
(a) All owners
identified in the claim;
(b) All persons
described in ORS 197.763 (2);
(c) The Department of
Land Conservation and Development, unless the claim was filed with the
department;
(d) Metro, if the
property is located within the urban growth boundary of Metro;
(e) The county in which
the property is located, unless the claim was filed with the county; and
(f) The city, if the
property is located within the urban growth boundary or adopted urban planning
area of the city.
(2) The notice required
under subsection (1) of this section must describe the claim and state:
(a) Whether a public
hearing will be held on the claim, the date, time and location of the hearing,
if any, and the final date for submission of written evidence and arguments
relating to the claim;
(b) That judicial review
of the final determination of a public entity on the claim is limited to the
written evidence and arguments submitted to the public entity; and
(c) That judicial review
is available only for issues that are raised with sufficient specificity to
afford the public entity an opportunity to respond.
(3) Except as provided
in subsection (4) of this section, written evidence and arguments in
proceedings on the claim must be submitted to the public entity not later than:
(a) The close of the final
public hearing on the claim; or
(b) If a public hearing
is not held, the date that is specified by the public entity in the notice
required under subsection (1) of this section.
(4) 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.
(5) A public entity
shall make the record on review of a claim, including any staff reports,
available to the public before the close of the record as described in
subsections (3) and (4) of this section.
(6) A public entity
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
public entity shall forward to the county, and the county shall record, a
memorandum of the final determination in the deed records of the county in
which the property is located.
SECTION 15. In
addition to any other notice required by law, a county must give notice of a
Measure 37 permit for property located entirely outside an urban growth
boundary to:
(1) The county assessor
for the county in which the property is located;
(2) A district or
municipality that supplies water for domestic, municipal or irrigation uses and
has a place of use or well located within one-half mile of the property; and
(3) The Department of
Land Conservation and Development, the State Department of Agriculture, the
Water Resources Department and the State Forestry Department.
JUDICIAL REVIEW
SECTION 16. (1)
A person that is adversely affected by a final determination of a public entity
under sections 5 to 11 or 12 to 14 of this 2007 Act may obtain judicial review
of that determination under ORS 34.010 to 34.100, if the determination is made
by Metro, a city or a county, or under ORS 183.484, if the determination is one
of a state agency. Proceedings for review of a state agency determination under
sections 5 to 11 or 12 to 14 of this 2007 Act must be commenced in the county
in which the affected property is located. Upon motion of any party to the
proceedings, the proceedings may be transferred to any other county with
jurisdiction under ORS 183.484 in the manner provided by law for change of
venue. A determination by a public entity under sections 5 to 11 or 12 to 14 of
this 2007 Act is not a land use decision.
(2) A person is
adversely affected under subsection (1) of this section if the person:
(a) Is an owner of the
property that is the subject of the final determination; or
(b) Is a person who
timely submitted written evidence, arguments or comments to a public entity
concerning the determination.
(3) Notwithstanding
subsection (1) of this section, judicial review of a final determination under
sections 5 to 11 or 12 to 14 of this 2007 Act or ORS 197.352 is:
(a) Limited to the
evidence in the record of the public entity at the time of its final
determination.
(b) Available only for
issues that are raised before the public entity with sufficient specificity to
afford the public entity an opportunity to respond.
OMBUDSMAN
SECTION 17. (1)
The Governor shall appoint an individual to serve, at the pleasure of the
Governor, as the Compensation and Conservation Ombudsman.
(2) The ombudsman must
be an individual of recognized judgment, objectivity and integrity who is
qualified by training and experience to:
(a) Analyze problems of
land use planning, real property law and real property valuation; and
(b) Facilitate resolution
of complex disputes.
SECTION 18. (1)
For the purpose of helping to ensure that a claim is complete, as described in
section 13 of this 2007 Act, the Compensation and Conservation Ombudsman may
review a proposed claim if the review is requested by a claimant that intends
to file a claim under sections 12 to 14 of this 2007 Act and ORS 197.352.
(2) At the request of
the claimant or the public entity reviewing a claim, the ombudsman may
facilitate resolution of issues involving a claim under sections 5 to 22 of
this 2007 Act.
MISCELLANEOUS
SECTION 19. (1)
If an owner submits an application for a comprehensive plan or zoning
amendment, or submits an application for an amendment to the Metro urban growth
boundary, and Metro, a city or a county approves the amendment, the owner is
not entitled to relief under sections 5 to 22 of this 2007 Act with respect to
a land use regulation enacted before the date the application was filed.
(2) If an owner files a
petition to initiate annexation to a city and the city or boundary commission
approves the petition, the owner is not entitled to relief under sections 5 to
22 of this 2007 Act with respect to a land use regulation enacted before the
date the petition was filed.
SECTION 20. An
appraiser certified under ORS 674.310 or a person registered under ORS chapter
308 may carry out the appraisals required by sections 5 to 22 of this 2007 Act.
The
Department of Land Conservation and Development is authorized to retain
persons to review the appraisals.
SECTION 21. (1)
Except as provided in this section, a claimant’s acquisition date is the date
the claimant became the owner of the property as shown in the deed records of
the county in which the property is located. If there is more than one claimant
for the same property under the same claim and the claimants have different
acquisition dates, the acquisition date is the earliest of those dates.
(2) If the claimant is
the surviving spouse of a person who was an owner of the property in fee title,
the claimant’s acquisition date is the date the claimant was married to the
deceased spouse or the date the spouse acquired the property, whichever is
later. A claimant or a surviving spouse may disclaim the relief provided under
sections 5 to 22 of this 2007 Act by using the procedure provided in ORS
105.623 to 105.649.
(3) If a claimant
conveyed the property to another person and reacquired the property, whether by
foreclosure or otherwise, the claimant’s acquisition date is the date the
claimant reacquired ownership of the property.
(4) A default judgment
entered after December 2, 2004, does not alter a claimant’s acquisition date
unless the claimant’s acquisition date is after December 2, 2004.
SECTION 21a. For
the purposes of sections 5 to 22 of this 2007 Act, a document is filed on the
date the document is received by the public entity.
SECTION 21b. For
the purposes of sections 5 to 22 of this 2007 Act, the fair market value of
property is 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.
SECTION 21c. If
any part of sections 5 to 22 of this 2007 Act is held to be unconstitutional or
otherwise invalid, all remaining parts of sections 5 to 22 of this 2007 Act
shall not be affected by the holding and shall remain in full force and effect.
SECTION 22. (1)
The Compensation and Conservation Fund is established in the State Treasury,
separate and distinct from the General Fund. Interest earned on moneys in the
Compensation and Conservation Fund shall be credited to the fund. The fund
consists of moneys received by the Department of Land Conservation and
Development under sections 5 to 22 of this 2007 Act and other moneys available
to the department for the purpose described in subsection (2) of this section.
(2) Moneys in the fund
are continuously appropriated to the department for the purpose of paying
expenses incurred to review claims under sections 5 to 22 of this 2007 Act and
for the purpose of paying the expenses of the Compensation and Conservation
Ombudsman appointed under section 17 of this 2007 Act.
CONFORMING AMENDMENTS
SECTION 23.
ORS 93.040 is amended to read:
93.040. (1) The
following statement shall be included in the body of an instrument transferring
or contracting to transfer fee title to real property except for owner’s sale
agreements or earnest money receipts, or both, as provided in subsection (2) of
this section: ”BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON
TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON’S RIGHTS, IF ANY, UNDER
[ORS 197.352] :BF9.SECTIONS 2, 3 AND 5 TO 22 OF THIS 2007 ACT. THIS INSTRUMENT
DOES NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF
APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS
INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH
THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES, TO
DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED
IN ORS 30.930 AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS,
IF ANY, UNDER [ORS 197.352] :BF9.SECTIONS 2, 3 AND 5 TO 22 OF THIS 2007 ACT.”
(2) In all owner’s sale
agreements and earnest money receipts, there shall be included in the body of
the instrument the following statement: ”THE PROPERTY DESCRIBED IN THIS
INSTRUMENT MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES.
THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS THAT, IN FARM OR
FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND THAT
LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930 IN
ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING
FEE TITLE SHOULD INQUIRE ABOUT THE PERSON’S RIGHTS, IF ANY, UNDER [ORS 197.352]
:BF9.SECTIONS 2, 3 AND 5 TO 22 OF THIS 2007 ACT. BEFORE SIGNING OR ACCEPTING
THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK
WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED
USES, THE EXISTENCE OF FIRE PROTECTION FOR STRUCTURES AND THE RIGHTS OF
NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER [ORS 197.352] :BF9.SECTIONS 2, 3 AND
5 TO 22 OF THIS 2007 ACT.”
(3) In all owners’ sale
agreements and earnest money receipts subject to ORS 358.505, there shall be
included in the body of the instrument or by addendum the following statement: ”THE
PROPERTY DESCRIBED IN THIS INSTRUMENT IS SUBJECT TO SPECIAL ASSESSMENT UNDER
ORS 358.505. ORS 358.515 REQUIRES NOTIFICATION TO THE STATE HISTORIC
PRESERVATION OFFICER OF
(4) An action may not be
maintained against the county recording officer for recording an instrument
that does not contain the statement required in subsection (1) or (2) of this
section.
(5) An action may not be
maintained against any person for failure to include in the instrument the
statement required in subsection (1) or (2) of this section, or for recording
an instrument that does not contain the statement required in subsection (1) or
(2) of this section, unless the person acquiring or agreeing to acquire fee
title to the real property would not have executed or accepted the instrument
but for the absence in the instrument of the statement required by subsection
(1) or (2) of this section. An action may not be maintained by the person
acquiring or agreeing to acquire fee title to the real property against any
person other than the person transferring or contracting to transfer fee title
to the real property.
SECTION 24. The
unit captions used in this 2007 Act are provided only for the convenience of
the reader and do not become part of the statutory law of this state or express
a legislative intent in the enactment of this 2007 Act.
SECTION 25. This
2007 Act shall be submitted to the people for their approval or rejection at a
special election held throughout this state as provided in chapter [See note
below] Oregon Laws 2007 (Enrolled House Bill 2083).
NOTE:
Chapter 424, Oregon Laws 2007 (Enrolled House Bill 3540), was referred to the
people at a special election on November 6, 2007. See section 2, chapter 750,
Oregon Laws 2007 (Enrolled House Bill 2640). If approved, the Act takes effect
30 days after special election.
Filed in the office of the Secretary of State June 15, 2007
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