ORDINANCE NO. 2913
AN ORDINANCE OF THE CITY OF ASHLAND, OREGON, REGARDING CLAIMS FOR JUST COMPENSATION ARISING OUT OF THE ENACTMENT OF BALLOT MEASURE 37, MAKING CERTAIN PROVISIONS THEREFORE, AND DECLARING AN EMERGENCY.
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:
SECTION 1. A new Chapter 110, Ballot Measure 37 Claims, shall be added to Title 18 of the Ashland Land Use Ordinance (ALUO) which shall read as follows:
ALUO 18.110.001: Purpose. The purpose of this Chapter is to establish the contents of a demand for just compensation under 2004 Measure 37 in order that the merits of claims under Measure 37 be adequately evaluated; to provide procedures for processing such demands; to provide a fair, just and expeditious evaluation of Measure 37 claims by the City; and to protect the citizens of the City of Ashland from the detrimental effects to public health, safety and welfare that would result from the granting of non-meritorious claims. The provisions of this Chapter are adopted pursuant to the City of Ashland's home rule authority under the Oregon Constitution, Article XI, Section 2, and apply to those demands for just compensation that are or may be allowed under Measure 37, enacted by the electors of the State of Oregon as a statute of the State of Oregon on November 2, 2004.
ALUO 18.110.010: Definitions. For the purposes of this Chapter, and
the evaluation, assessment and processing of Measure 37 claims, the following
A. Affected Property: the private real property that is alleged to have suffered a reduction in fair market value as result of the City's regulation restricting the use of that property and for which a property owner seeks compensation for the reduction in value.
B. Appraisal: a written statement of an opinion of the value of real property prepared by an appraiser licensed by the Appraiser Certification and Licensure Board of the State of Oregon, and who holds the applicable certification for the type of appraisal.
C. Claimant: the property owner who submits a written claim for just compensation under Section 18.110.020.
D. City Administrator: the City Administrator of the City of Ashland, or the City Administrator's designee.
E. Common and Historically Recognized Public Nuisance Under Common Law: unreasonable interferences with rights common to the general public in the use and enjoyment of land, as recognized in judicial decisions applying common law rules. Under common law rules, an interference is unreasonable if the harm to the public right is significant, and the particular public use interfered with is well suited to the character of the locality and the owner's conduct or use of the land is unsuited to the character of that locality.
F. Current Owner: the present fee simple owner of real property that is the subject of the demand for compensation, as reflected in the deed records of Jackson County, Oregon, or the present owner of any interest in real property that is the subject of the demand for compensation, as reflected in a written instrument conveying or creating the interest.
G. Demand for Just Compensation: A written demand for just compensation by a current owner pursuant to Measure 37 that fulfills the requirements of ALUO 18.110.020.
H. Enforced: to compel conformity with a land use regulation by the issuance of a final order in a contested judicial or quasi-judicial proceeding; to issue a final decision denying an application to use private real property, or interest in real property, for a stated purpose through the application of a land use regulation as an approval criterion.
I. Exempt Land Use Regulation: A land use regulation that:
|1.||Restricts or prohibits activities commonly and historically recognized as public nuisances under common law;|
|2.||Restricts or prohibits 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;|
|3.||Is required in order to comply with federal law;|
|4.||Restricts or prohibits the use of property for the purpose of selling pornography or performing nude dancing; or|
|5.||Was enacted prior to the date of acquisition of the property by the owner or a family member of the owner.|
J. Fair Market Value of the Property: the minimum amount of cash which could reasonably be expected to be paid for the purchase of a current owner's real property or interest in real property, by an informed buyer, acting without compulsion, to an informed seller, also acting without compulsion, in an arms-length transaction.
K. Family member: a member of the current owner's family, as defined by Measure 37.
L. Just Compensation: an amount of money equal to the reduction in the fair market value of real property that is the direct result of the future enactment of a land use regulation or enforcement of an existing land use regulation which provides the basis for a demand for just compensation, as of the date a current owner makes the demand for just compensation. A reduction of the fair market value of property shall exclude any reduction resulting from events, actions or occurrences other than the restriction of uses permitted by the land use regulation. A reduction in fair market value shall not include reductions resulting from depreciation, changes in local, state or national economic conditions, failures by the current owner to gainfully use the real property, lack of public services to the real property, reductions in fair market value resulting from the existence of a historically or commonly recognized public nuisance or private nuisance on or about the property or surrounding property, changes in the value of the real property resulting from fluctuations in the real estate market, or conditions on surrounding property, changes in value resulting from the existence of any private covenants, conditions and restrictions, changes in value caused by any other easements or restrictions on the property or the use thereof or reductions related to any other factors other than reductions which are the direct result of the enactment or enforcement of a land use regulation.
M. Land Use Regulation: a land use regulation as defined by Measure 37.
N. Interest in Real Property: any legally recognized, alienable interest in real property, having monetary value, which is less than a fee simple absolute.
O. Measure 37 claim: a claim for just compensation arising from the circumstances set forth in Ballot Measure 37, adopted by the people of the State of Oregon on November 2, 2004.
P. Real Property: privately held lots, parcels or tracts, as described in the deed conveying the real property, or the interest in real property as conveyed in such lots, parcels or tracts, owned by a current owner.
Q. Restricts the Use of Property: prohibiting a particular use of the property or making that use only permissible under certain conditions. Standards that regulate the form of development, how a structure must be constructed, or how grading or fill is to be conducted, such as yard setback requirements, height limitations, erosion control measures and building code standards, are not restrictions on the use of property. Regulations requiring or setting fees to be charged are not restrictions on the use of property.
ALUO 18.110.015. Measure 37 Demands; Ripeness; Claim
A. The current owner of real property may submit a demand for just compensation under Measure 37 if the City enforces a land use regulation, other than an exempt regulation, against the property; the land use regulation was enacted after the date the current owner, or, in proper case, a family member of the owner as defined in ALUO 18.110.010, acquired the real property; the land use regulation restricts uses permitted on the real property; and the restriction imposed by the land use regulation has the effect of causing a reduction in the fair market value of the real property.
B. Any current owner who intends to assert a Measure 37 claim shall make that intention known at the time the current owner submits an application for any permit that would result in the use of the land use regulation that would be the basis for the Measure 37 claim as an approval criteria.
C. No enforcement shall be deemed to have occurred merely because the current owner has submitted a demand for just compensation to the City and the demand for just compensation was denied. Nothing in this subsection shall be deemed to prevent the City from engaging in any action that would result in the resolution of a potential claim under Measure 37 prior to the date the land use regulation is enforced against the current owner's real property.
ALUO 18.110.020. Contents of Demands for Compensation;
A. In order to adequately, completely and expeditiously assess the validity of a current owner's demand for compensation, and to protect the public interest when determining whether to compensate for, modify, remove or not apply a land use regulation, any demand for compensation submitted to the City shall consist of and include the following:
|1.||A completed demand for just compensation signed by the current owner and all others having an ownership interest in the property. The demand shall be submitted upon forms prescribed by the City Administrator.|
|2.||Copies of all deeds and other instruments conveying interests in the affected real property to the current owner.|
|3.||A title report issued not more than thirty days prior to the submission of the demand for just compensation, which shall include the title history, the date the current owner acquired title to the real property, the interests held by any other current owners, an identification of any restrictions on use of the real property unrelated to the land use regulation against which just compensation is sought, including, but not limited to, any restrictions established by covenants, conditions and restrictions; easements, other private restrictions, or other regulations, restrictions or contracts.|
|4.||A list of the names and addresses, according to the most recent property tax assessment role, of all property owners owning land within three hundred feet of the exterior boundaries of the property for which a demand for just compensation is being made.|
|5.||A copy of the land use regulation(s) that is(are) the basis for the demand for just compensation. All potential claims of the current owner must be consolidated at the time a demand for just compensation is made.|
|6.||A copy of the land use regulation(s), showing the uses which were allowed at the time the current owner, or in relevant case the family member, acquired the property for which a demand for just compensation is being made.|
|7.||For a Measure 37 claim based on descent, proof that the prior owner was a family member of the current owner.|
|8.||Copies of any leases, easements, contracts or covenants, conditions and restrictions (CCRs) applicable to the real property, if any, that impose restrictions or other encumbrances on the use of the property.|
|9.||The amount of the alleged reduction in fair market value of the real property that the current owner believes is the amount of just compensation, together with the methodology for arriving at the alleged reduction in fair market value and any supporting documentation such as an appraisal by an appraiser licensed by the Appraiser Certification and Licensure Board of the State of Oregon.|
|10.||Any other facts the current owner believes are material to the evaluation and assessment of claim for just compensation.|
|11.||A $250 application processing fee.|
B. Demands for just compensation shall be submitted to the City Administrator. No demand for just compensation shall be deemed submitted until all materials required by this section have been provided to the City Administrator by the current owner. A notice of submission shall be sent to the current owner at the time the City Administrator determines the current owner's demand for just compensation has been deemed submitted.
C. Notwithstanding a claimant's failure to provide all of the information and/or the application processing fee required by subsection (A) of this section, the city may review and act on a claim.
ALUO 18.110.025. Notice of Demand for Just
A. The City Administrator shall mail notice of demand to any other owner with an interest in the current owner's real property, to all owners of real property located within three hundred feet of the current owner's real property, as listed on the most recent property tax assessment rolls, to neighborhood groups and community organizations whose boundaries include the current owner's real property and to those requesting notice. The notice shall:
|1.||State the basis of the demand, the amount of the compensation sought and the land use regulation which is the basis of the demand;|
|2.||Identify the current owner's real property by the street address or other easily understood geographical reference;|
|3.||State that persons noticed may provide written comments on the demand, and provide the date on which written comments are due;|
|4.||Identify a city representative and telephone number to contact to obtain additional information; and|
|5.||State that a copy of the demand and the supporting documents submitted by the current owner are available for inspection at no cost, and that copies will be provided at reasonable cost.|
B. Written comments regarding a demand may be submitted to the City Administrator. Comments must be received by the City Administrator within 14 days from the date of mailing of the notice of demand for just compensation.
ALUO 18.110.030. Claim Processing and Evaluation.
A. After the current owner's demand for just compensation is deemed submitted or is processed as provided in ALUO 18.110.020(c), the City Administrator shall review and evaluate the demand and determine whether the demand meets the requirements, and satisfies the criteria, of Measure 37. The City Administrator may obtain other appraisals and opinions of the value of the real property for the purposes of evaluating the current owner's estimate of the reduction in the fair market value.
B. The current owner has the burden of proof to demonstrate to the City by a preponderance of the evidence that just compensation is due under Measure 37.
C. The City Administrator may deny a claim for just compensation based upon one or more of the following findings:
|1.||The regulation that is the subject of the claim does not restrict the use of the private real property.|
|2.||The fair market value of the property is not reduced by the enactment or enforcement of the regulation.|
|3.||The claim was not timely filed.|
|4.||The Claimant is not the current property owner.|
|5.||The Claimant or family member of Claimant was not the property owner at the time the regulation was adopted.|
|6.||The regulation is a historically and commonly recognized nuisance law or a law regulating pornography or nude dancing.|
|7.||The regulation is required by federal law.|
|8.||The regulation protects public health or safety.|
|9.||The City is not the entity responsible for payment. The City is not responsible if the challenged law, rule, ordinance, resolution, goal or other enactment was not enacted by the City.|
|10.||The City has not taken final action to enforce or apply the regulation to the property for which compensation is claimed.|
|11.||The Claimant is not legally entitled to compensation for a reason other than those listed in subsections 1 through 10. The basis for this finding must be clearly explained.|
|12.||The City Council has not established a fund for payment of claims under Measure 37.|
D. The City Administrator shall maintain a record of all costs, including personnel costs, incurred by the City in processing the demand for just compensation. The City shall bill the current owner for all costs incurred, less the $250 application fee provided for in ALUO 18.110.020(a)(11). The current owner shall remit to the City an amount equal to such costs within thirty days after the date of billing. In the event the City determines that just compensation should be paid, the costs, less the $250 application fee shall be refunded. In the event the current owner files an action in circuit court and prevails, the claim processing costs, less the $250 claim processing application fee provided for in ALUO 18.110.020(a)(11), shall be added to the judgment as a cost or disbursement, so long as the current owner has timely paid those costs.
ALUO 18.110.035. Notice to City Council and Council
A. In the event the City Administrator has denied the demand, or in the event the City Administrator has recommended a determination that the demand is valid, the City Administrator shall forward the decision to the City Council, supported by findings. If the City Administrator recommends the demand be granted, in whole or in part, the City Administrator shall include a recommendation whether just compensation should be paid and the amount of such compensation, or whether the land use regulation be modified, removed or not applied to the real property.
B. If the City Administrator's decision is to deny the demand in whole, and the City Administrator does not receive a request from at least two or more Councilors to hold a hearing regarding the demand within ten days after receiving notice of the decision, the City Administrator may issue a summary denial.
C. The City Administrator shall schedule a public hearing before the City Council on any demand for just compensation, other than demands for which a summary denial has been issued under subsection (B) of this section. Notice of the public hearing shall be provided to the current owner, to all persons entitled to notice under ALUO 18.110.025, to neighborhood groups and community organizations whose boundaries include the current owner's real property and to those requesting notice. Notice may also be published in a newspaper of general circulation within the City, at the City Administrator's discretion.
D. After public hearing, the City Council may:
|1.||Deny the demand for just compensation based upon one of the grounds for denial set forth in ALUO 18.110.030(C).|
|2.||Award compensation, either in the amount requested, or in some other amount supported by the evidence in the record. Payment of any compensation is subject to the availability and appropriation of funds for that purpose.|
|3.||Modify the regulation.|
|4.||Remove the regulation.|
|5.||Not apply the regulation.|
|6.||Acquire the affected Property through negotiation or eminent domain.|
|7.||Take such other actions as the Council deems appropriate consistent with Measure 37.|
E. The City Council's decision to modify, remove or waive the land use regulation shall be based on whether the public interest would be better served by either paying just compensation to the current owner or by modifying, removing or waiving the land use regulation and shall be in the form of a resolution.
F. The Owner shall bear the burden of proof relating to the Demand and entitlement to just compensation. The city shall bear the burden of proof to show that the regulation is exempt under Measure 37, or ALUO 18.110.010(I). The standard of proof shall be by a preponderance of the evidence.
G. A copy of the City Council decision or the City Administrator's summary denial shall be sent by mail to the Current Owner, to each person with an ownership interest, and to each individual or entity that participated in the review process, provided a mailing address or email address was provided to the city as part of the review process. The City Council may establish any relevant conditions of approval for compensation, should compensation be granted, or for any other action taken under this subsection.
H. Failure to comply with any condition of approval is grounds for revocation of the approval of the compensation for the Demand, grounds for the City to recover any compensation paid and grounds for revocation of any other action taken under this Section.
I. A decision to remove, modify or not apply a land use regulation is personal to the Owner, and shall automatically become void and invalid if the Owner conveys the Property to another person before development of the Property consistent with the removal of, modification of or decision to not apply the land use regulation is completed. Development of the Property under this sub-section shall not be deemed to be completed until a certificate of occupancy or other appropriate certificate indicating completion is issued by the City of Ashland building official.
J. In the event the Owner (or the Owner's successor in interest, if the development is completed as described in ALUO18.110.035(I)) fails to fully comply with all conditions of approval or otherwise does not comply fully with the conditions of approval, the city may institute a revocation or modification proceeding before the city council.
ALUO 18.110.040. Modification, Removal or Waiver of Land Use
A. If the City Council directs that the land use regulation be modified, removed, not applied or waived, then the current owner shall be allowed to use the real property for a use permitted at the time the current owner acquired the property. Successors in interest to the current owner shall acquire their interests in the real property subject to such land use regulations as are in effect as of the date of the successor's acquisition of the real property, as provided by Subsection (3)(E) of Measure 37, and such interests shall have the legal status otherwise provided by law.
B. A copy of any City resolution compensating for, modifying, removing or waiving the land use regulation shall be recorded in the deed records of the county wherein the real property lies.
C. A copy of all claims submitted and the final decision and action taken in response to it will be provided by the City Administrator at least annually to the State of Oregon-designated agency tracking cases related to Measure 37.
ALUO 18.110.045. Private Cause of Action.
A. In order to protect the reasonable investment-based expectations of other property owners who have relied upon land use regulations in purchasing real property, if:
|1.||The modification, removal or waiver of the land use regulation pursuant to Measure 37 results in a private nuisance on other owners' real property, then the affected owner or owners shall have a cause of action in circuit court against the current owner to abate the nuisance or to recover an amount equal to the diminution of value in that owner or owner's real property as a result of the nuisance;|
|2.||The City Council's approval of a claim by removing or modifying a land use regulation causes a reduction in value of other property located in the vicinity of the Property, the owner(s) of the other property shall have a cause of action in the appropriate Oregon Circuit Court to recover from the Owner(s) (of the Property subject to the Demand) in the amount of such reduction in value.|
B. The prevailing party in an action set forth in subsection A of this section shall be entitled to reasonable attorney's fees and costs at trial and upon appeal.
ALUO 18.110.050. Attorney Fees. If a Demand under Measure 37 and this Section is denied or not fully paid within 180 days of the date of filing a completed Demand, and the Owner commences suit or action to collect compensation, and, if the City is the prevailing party in such action, then City shall be entitled to any sum which a court, including any appellate court, may adjudge reasonable as attorney's fees. In the event the City is the prevailing party and is represented by "in-house" counsel, the prevailing party shall nevertheless be entitled to recover reasonable attorney fees based upon the reasonable time incurred and the attorney fee rates and charges reasonably and generally accepted in Ashland, Oregon, for the type of legal services performed.
SECTION 2. Severability. The sections, subsections, paragraphs and clauses of this ordinance are severable. The invalidity of one section, subsection, paragraph, or clause shall not affect the validity of the remaining sections, subsections, paragraphs and clauses.
SECTION 3. Emergency. The City Council of the City of Ashland finds that the health, safety and welfare of the City of Ashland requires this ordinance to have immediate effect. Therefore, the City Council hereby declares the existence of an emergency and this ordinance shall be in full force and effect from the time of its passage by the Council and approval by the Mayor.
The foregoing ordinance was first read on the 30th day of November, 2004,
and duly PASSED and ADOPTED this 30th day of November, 2004.
Barbara M. Christensen, City Recorder
SIGNED and APPROVED this 2nd day of December, 2004.
Alan W. DeBoer, Mayor
Reviewed as to form:
Michael Franell, City Attorney
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