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Council Communication

Title: An Ordinance Repealing Chapter 18.114 of the Ashland Municipal Code Relating to Regulatory Taking Claims (Ballot Measure 7-2000 Amendment to Article I, Section 18, Oregon Constitution)
Dept: Legal Department
Date: December 3, 2002
Submitted By: Paul Nolte
Reviewed By:
...........................
Brian Almquist, Interim City Administrator

Synopsis: This ordinance repeals the code chapter that established the process for takings claims filed under the Ballot Measure 7-2000 amendment to Article I, Section 18, of the Oregon Constitution. Ballot Measure 7-2000 required the city to compensate landowners if the city enacted, enforced, or applied a regulation that lowered the value of an owner's property by restricting its use.
Recommendation: Move to adopt first reading of the ordinance.
Fiscal Impact: None
Background: On October 4, 2002, the Oregon Supreme Court unanimously upheld the Marion County Circuit Court's decision that Ballot Measure 7-2000 was unconstitutional and therefore invalid in its entirety. The Supreme Court's decision invalidated the constitutional amendment on the basis that it made two or more amendments to the Oregon Constitution that were not closely related and that voters should have voted upon separately. Since chapter 18.114 addresses only those claims that could have been filed under the invalidated measure, there is no reason to retain the chapter in the code.

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ORDINANCE NO.  _________

AN ORDINANCE REPEALING CHAPTER 18.114 OF THE ASHLAND MUNICIPAL CODE RELATING TO REGULATORY TAKING CLAIMS (Ballot Measure 7-2000 Amendment to Article I, Section 18, Oregon Constitution)

THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:

SECTION 1. Chapter 18.114 of the Ashland Municipal Code is repealed.

The foregoing ordinance was first READ on the ________day of _________, 2002, and duly PASSED and ADOPTED this ________day of ___________, 2002.
Barbara Christensen, City Recorder

SIGNED and APPROVED this ________ day of ________, 2002.
Alan W. DeBoer, Mayor

Reviewed as to form:
Paul Nolte, City Attorney

Note: The chapter being repealed is set forth below for the reader's convenience:

CHAPTER 18.114

REGULATORY TAKING CLAIMS (Ballot Measure 7-2000 Amendment to Article I, Section 18, Oregon Constitution)

SECTIONS:

18.114.010. Purpose.
18.114.020. Definitions.
18.114.030. Notice of Claim.
18.114.040. Completeness Review of Notice of Claim.
18.114.050. Procedure to Evaluate Claim.

SECTION 18.114.010. Purpose. The purpose of this chapter is to:

A. Create a process for the evaluation of claims for regulatory takings filed under the 2000 Amendment to Article I, Section 18, of the Oregon Constitution adopted by the voters in November 2000.

B. Enable persons with claims an adequate and fair opportunity to present and resolve them in a timely, efficient, thorough and consistent manner.

(Ord 2863, Added, 12/05/2000)

SECTION 18.114.020. Definitions. For the purpose of this chapter the following terms, phrases, words and their derivations shall have the meaning given in this section. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. Words not defined in this chapter shall be given the meaning intended in Article 18, Section 1 of the Oregon Constitution, or as those words may be subsequently defined by statute. If not defined there, the words shall be given their common and ordinary meaning.

A. Affected property means the private real property claimed to be reduced in value because of a regulation and includes contiguous units of property under the same ownership and any structure built or sited on the property, aggregate and other removable minerals, and any forest product or other crop grown on the property.

B. Exempt regulation means

1. A regulation which imposes a restriction required under federal law, to the minimum extent required by federal law; or

2. A regulation prohibiting the use of a property for the purpose of selling pornography, performing nude dancing, selling alcoholic beverages or other controlled substances, or operating a casino or gaming parlor, or

3. A regulation governing historically and commonly recognized nuisance laws, including those nuisances described in Title 9 of the Ashland Municipal Code, as amended from time to time, and the criminal laws of the State of Oregon and the City of Ashland.

C. Property owner means the owner of title to affected property or the contract purchaser of such property, where the contract is of record.

D. Reduced in value means the difference in the fair market value of the property before and after application of the regulation including the net cost to the landowner of an affirmative obligation to protect, provide, or preserve wildlife habitat, natural areas, wetlands, ecosystems, scenery, open space, historical, archaeological or cultural resources, or low income housing.

E. Regulation means a duly adopted city ordinance as codified in the Ashland Municipal Code, a restriction on the use of property imposed under Title 18 of the Ashland Municipal Code, or any law, rule, ordinance, resolution, goal, or other enforceable enactment of the City of Ashland.

(Ord 2863, Added, 12/05/2000)

SECTION 18.114.030. Notice of Claim.

A. No claim arising from the 2000 Amendment to Article I, Section 18 (Measure 7) shall be considered a claim unless notice of claim is filed as required by this section.

B. Notice of claim must be a written communication from a claimant filed with the city administrator and must include:

1. Name, address and telephone number of person filing claim.

2. Names and addresses of all property owners and all persons who hold a security interest in the affected property.

3. Legal description and street address of affected property including contiguous units of property under the same ownership.

4. Preliminary title report, dated not more than 30 days from the date the claim is filed, from a title insurance company licensed in Oregon.

5. Description of, and citation to, regulation adopted, applied or enforced on the affected property causing a reduction in value.

a. Date regulation was adopted, applied or enforced on the affected property.

b. Date property owner or owners obtained title to property or became contract purchasers of record.

6. Description of the use that has been restricted by the regulation described in subsection B.5 of this section.

7. Amount the affected property has been reduced in value because of the restriction.

8. Statements explaining why the regulation is not an exempt regulation.

9. A written appraisal by an appraiser certified or licensed under ORS Ch. 674 that provides an opinion of the difference in the fair market value of the affected property before and after application of the regulation.

10. Any exempt regulations, known to the claimant, that may apply to the affected property, whether or not those exempt regulations affect the fair market value.

11. A statement explaining how the regulation restricts the use of the affected property and why the regulation has the effect of reducing the value of the property upon which the restriction is imposed.

12. A statement of the effect a release of the regulation on the property would have on the potential development of the property, stating the greatest degree of development that would be permitted if the identified regulation were released from the property.

13. A statement of the relief sought by the claimant.

C. A notice of claim must be accompanied by a fee to be paid in advance of acceptance for filing to cover the costs of completeness review and application processing. This fee shall be established by resolution of the council. The application fee shall be refunded if the city or an appellate body determines that just compensation should be paid.

(Ord 2863, Added, 12/05/2000)

SECTION 18.114.040. Completeness Review of Notice of Claim.  A notice of claim shall not be considered a claim until determined to be complete by the city administrator. If the notice of claim is not complete, the city administrator shall inform the claimant in writing of the additional information necessary to make the notice of claim complete. The notice of claim shall be deemed complete at such time as the additional information is submitted and determined complete.

(Ord 2863, Added, 12/05/2000)

SECTION 18.114.050. Procedure to Evaluate Claim. Claims shall be processed as follows:

A. Upon filing of a complete notice of claim, the city administrator shall make a recommendation to the city council as to disposition of the claim and schedule the matter for consideration by the council.

B. Notice of the time and date the council will consider the claim shall be mailed to the claimant (and all owners of record of property on the most recent property tax assessment roll where such property is located within 200 feet of the affected property) ten days prior to this date.

(Ord 2863, Added, 12/05/2000)

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