The purpose of this section is to adopt a procedure for filing, receiving, and evaluating claims that are provided for under Ballot Measure 49.
(Ord. 247, Add, 11/12/2004; Ord. 282, Amended, 03/24/2009)
Note: Requirements and Procedures for Filing and Reviewing Claims Provided for in Ballot Measure 49 for Property that Is Located, in Whole or in Part, Inside the City of Yachats
For purposes of this Section, the following definitions shall apply:
means a written demand for compensation filed under Sections 12 to 14 of Measure 49 and ORS 197.25, as in effect on and after the effective date of Measure 49.
means the person who has filed a claim. The claimant must be a current owner of the property that is the subject of the claim.
means the Yachats City Council.
means the City Recorder of the City of Yachats or designee.
As defined in Section 21(b) of Measure 49 "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 the 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.
means 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.
means a provision of a city comprehensive plan, or zoning and land use code that restricts the residential use of private real property.
means the measure enacted by the voters on November 6, 2007, which amended Oregon Revised Statutes Chapter 197.
This term includes a public or private entity.
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.
means the difference, 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.
has the meaning given that term in ORS 195.060.
means an action or decision authorizing the claimant to use the property without application of the land use regulation(s) to the extent necessary to offset the reduction in fair market value of the property.
(Ord. 247, Add, 11/12/2004; Ord. 282, Amended, 03/24/2009)
A.
Filing. All claims shall be filed with the City Recorder in person or by U.S. Mail. The filing date is the date the claim is received by the City.
B.
Submittal requirements.
1.
Claimant shall file a complete Measure 49 claim form provided by the City Recorder including:
a.
The name and address of each owner and the date when the property was acquired;
b.
The address, if any, and the assessor's map and tax lot number of the property that is the subject of the claim;
c.
A statement of the person's desired use of the property for residential use;
d.
A specific reference to each land use regulation enacted after January 1, 2007 that is alleged to restrict the person's desired use of the property and when the land use regulations were enacted;
e.
The amount of reduction in fair market value alleged for each regulation at issue plus interest;
f.
Whether a previous permit was issued for development of the property including a description of the use and the case file number;
g.
Whether a claim was filed for the subject property with the state or any other government; and
h.
Any other information reasonably related to the review and processing of the claim as required by the City Recorder or as provided on the Measure 49 claim form; and
i.
All information required to be submitted by Ballot Measure 49 and subsequent amendments to Measure 49.
2.
Claimant shall also provide:
a.
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;
b.
The written consent of all of the owners if there is more than one owner;
c.
An appraisal showing the fair market value of the property one year before the enactment of each 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:
d.
The applicable claim(s) review fee which shall be established by the Yachats City Council.
3.
Only one claim for each property may be filed for each land use regulation.
C.
Claim review process. The City shall:
1.
Deny a claim if:
a.
It is not filed within five years from the date the land use regulation was enacted;
b.
An application for a comprehensive plan or zoning amendment is approved for the subject property; or
c.
The highest and best use of the property was not residential at the time the land use regulation was enacted.
2.
Determine whether a claim is complete within 60 days after receiving the claim;
3.
Notify the claimant of any missing information within 60 days after receiving the claim;
5.
Deem the application complete when filed if the City fails to notify the claimant of missing information within 60 days after receiving the claim;
6.
Deem the application withdrawn if the claimant fails to provide the missing information of fee or a written statement that some or all of the missing information will not be provided within the time specified in the notice of missing information; and
7.
Issue a final determination on a claim within 180 days from the date the claim is deemed complete.
(Ord. 247, Add, 11/12/2004; Ord. 282, Amended, 03/24/2009)
A.
Claims review process. Upon receipt of filing, the City shall follow the claims review process under Section 1.60.030.
B.
Review the criteria. The City Recorder shall determine whether to recommend approval or denial of the claim based on a demonstration by the owner that:
1.
A city enacted land use regulation enacted after January 1, 2007 and after the property was acquired restricts the person's desired residential use or the property;
2.
The land use regulation has the effect of reducing the fair market value of the property;
3.
The highest and best use of the property at the time the property was acquired is the person's desired use of the property;
4.
The land use regulation is not exempt land use regulation under the terms of Measure 49;
5.
The time limitations for filing a claim; as specified in Measure 49, have not been exceeded; and
6.
All other requirements of law have been met.
C.
Acquisition date. The date the property was acquired is:
1.
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;
2.
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.
3.
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 relief by using the procedure provided in ORS 105.623 to 105.649; and
4.
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.
5.
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.
D.
Notice of public hearing and opportunity to comment on Claim. A notice of public hearing and an opportunity to submit written comments on the Claim shall be sent to:
1.
All property owners of record with 100 feet of the subject property;
2.
The Department of Land Conservation and Development;
3.
The Board of County Commissioners.
The notice shall contain: | |
1. | The address, if any, and the assessor's map and tax lot number of the property that is the subject of the claim; |
2. | A statement of Claimant's desired use of the property for residential use; |
3. | The number of dwellings, lots or parcels sought by the Claimant as well as the specific regulations alleged to restrict the use of the property; |
4. | A statement that the Claim and any information submitted by the Claimant is available at the City for inspection or copying at cost and the phone number of the City Recorder; |
5. | A statement that all persons may submit written comments at or prior to the close of the final public hearing on the claim; |
6. | A statement that judicial review of the final determination on the claim is limited to the written evidence and arguments submitted to the City; |
7. | A statement that prior to the close of the testimony, the claimant may request an additional seven days to respond to new evidence or to submit written evidence and arguments in response to testimony or submittals; |
8. | A statement that judicial review is available only for issues that are raised with sufficient specificity to afford the public entity an opportunity to respond; and |
9. | Any other information as deemed necessary by the City Recorder. |
E.
If a claim is deemed complete and not rejected, the City Recorder shall draft a staff report. The staff report will be available at least seven calendar days prior to the hearing addressing:
1.
Whether the claim filed is complete; and
2.
A recommendation as to whether and how much to pay in compensation, or, in lieu thereof, a recommendation regarding the number of dwellings and lots that may be approved and the land use regulations. that should be waived.
The staff report shall consider such factors as: the amount of compensation at issue; the nature of the proposed use or development, if any; and the impact of the proposed use or development.
(Ord. 247, Add, 11/12/2004; Ord. 282, Amended, 03/24/2009)
A.
Claim processing. All claims shall be reviewed by the Council consistent with the claims review provided under the Code Chapter. The Council shall issue a final decision after providing notice and a hearing within 180 days from the date the claim is deemed complete.
B.
Notice and hearing. The decision of the Council shall be made after a public hearing conducted in accordance with such procedures as the Council may adopt. At least 30 days' written notice shall be provided and the notice shall include such information as set forth in Section 1.16.040(D).
The Council shall consider all comments received by the conclusion of the hearing and such other information in the record as the City deems relevant and material. The claimant may request an additional seven days to respond to new evidence or to submit final arguments. This request must be made before the close of testimony.
C.
Final decision. The Council may reject the claim, pay compensation, issue a waiver or approve any combination of such remedies. The decision shall otherwise be decided based on the review criteria in Section 1.16.040(B). The Council may waive some regulations specified in the claim and deny waiver of others. The Council is not limited to those regulations listed in the claim and may impose any conditions of approval that it deems reasonable and appropriate to protect the public interest. 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 Code Chapter.
D.
Notice of final decision or rejection of claim. The City shall send a copy of the Council's decision to the claimant. Notice of the Council's final decision shall also be mailed to any person who submitted written evidence or arguments during the comment period, any person entitled to notice of the hearing, and any person who appeared orally or in writing at the public hearing. The notice shall contain a brief description of the waiver, including a listing of all regulations that the Council has decided to not apply and the specific number of dwellings, lot or parcels authorized by the waiver. The notice shall also state that a claim had been, or may need to be, filed with the State, if the Council thinks that a State regulation is implicated.
(Ord. 247, Add, 11/12/2004; Ord. 282, Amended, 03/24/2009)
The claimant shall have the burden of proof on all matters under this Code Chapter. The claimant bears sole responsibility for ensuring that the record before the City contains all information and evidence necessary to support the claim. The claimant shall be precluded from submitting information or raising new issues in any subsequent proceeding unless the claimant demonstrates that the information or issue could not reasonably have been entered into the record or raised before the City.
(Ord. 247, Add, 11/12/2004; Ord. 282, Amended, 03/24/2009)
A.
A decision to waive a land use regulation shall in no way impact any obligation to demonstrate compliance with any regulations not expressly provided for in the decision or to obtain any required approvals to permits
(Ord. 247, Add, 11/12/2004; Ord. 282, Amended, 03/24/2009)
No procedural defect in processing a claim shall invalidate any proceeding or decision unless the party alleging the error demonstrates prejudice to a substantial right. Inadvertent failure to provide notice or complete notice shall not be grounds for invalidating a decision.
(Ord. 247, Add, 11/12/2004; Ord. 282, Amended, 03/24/2009)
The City must record a memorandum of the final waiver in the deed records for the county.
(Ord. 282, Add, 03/24/2009)
The Council may, at its sole discretion, reconsider a decision on a claim if it appears that the decision is inconsistent with a subsequent court ruling, administrative rule or other change in the law relating to Measure 49. The decision to reconsider may be made without notice or hearing; but, the decision on reconsideration shall be made only after notice and opportunity to be heard consistent with the requirements for claim and review provided under this Code Chapter. At the conclusion of the process, the Council may affirm, modify, or revoke the earlier decision. If the Council modifies or revokes a decision that resulted in payment of compensation, the Council may institute an action for recovery. If the Council modifies or revokes a decision to modify, remove, or not apply a land use regulation, it shall issue an order setting forth such remedy as it deems appropriate to protect the public interest.
(Ord. 282, Add, 03/24/2009)
A.
The following rules govern any challenges to any member of the City Council's participation in the review of Claims:
1.
Any factual information obtained by a member of the City Council outside the information provided by city staff, or outside of the formal written comments process or hearing will be deemed an ex parte contact. Any member of the City Council that has obtained any material factual information through an ex parte contact must declare the content of that contact, and allow any interested party to rebut the substance of that contact. This rule does not apply to contacts between city staff and any member of the City Council.
2.
Whenever a member of the City Council, or any member of their immediate family or household, has a direct financial interest in the outcome of a particular Claim or lives within the area entitled to notice of the Claim, that member of the City Council shall not participate in the deliberation or decision on that application.
3.
All decisions on Claims must be fair, impartial and based on the applicable review standards and the evidence in the record. Any member of the City Council who is unable to render a decision on this basis must refrain from participating in the deliberation of decision on that matter.
(Ord. 282, Add, 03/24/2009)
Compensation can only be paid based on the availability and appropriation of funds for this purpose.
(Ord. 282, Add, 03/24/2009)
For all Claims filed with the City of Yachats, the applicable state law is Measure 49 as amended, modified or clarified by subsequent amendments or regulations adopted by the Oregon State Legislature of Oregon State Administrative Agencies. Any Claim that has not been processed completely under the Code Chapter shall be subject to any such amendments, modifications, clarifications or other actions taken at the state level and this Code Chapter shall be read in a manner so as to conflict with such amendments, modifications, clarifications or other actions taken at the state level. This Code Chapter is adopted solely to address Claims filed under the authority of those provisions of Measure 49.
(Ord. 282, Add, 03/24/2009)