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
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)
For purposes of this Section, the following definitions shall
apply:
means a written statement prepared by a person certified
under ORS Chapter 674 or a person registered under ORS Chapter 308.
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:
i.
be prepared by a person certified under ORS Chapter 674 or a person
registered under ORS Chapter 308;
ii.
comply with the Uniform Standards of Professional Appraisal Practice,
as authorized by the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989; and
iii.
expressly determine the highest and best use of the property at the
time the land use regulation was enacted; and
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.
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The notice shall contain:
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1.
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The address, if any, and the assessor's map and tax lot number
of the property that is the subject of the claim;
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2.
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A statement of Claimant's desired use of the property for residential
use;
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3.
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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;
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4.
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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;
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5.
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A statement that all persons may submit written comments at
or prior to the close of the final public hearing on the claim;
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6.
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A statement that judicial review of the final determination
on the claim is limited to the written evidence and arguments submitted
to the City;
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7.
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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;
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8.
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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
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9.
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Any other information as deemed necessary by the City Recorder.
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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
B.
A use
authorized by a waiver has the legal status of a lawful nonconforming
use in the same manner as provided under ORS 215.130.
(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.
A person
that is adversely affected by a final determination under this Code
Chapter may obtain judicial review of that determination under ORS
34.010 to 43.100. A person is adversely affected if the person is:
(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)
