Chapter 2.100 PRIVATE PROPERTY COMPENSATION CLAIMS

Chapter 2.100
PRIVATE PROPERTY COMPENSATION CLAIMS

Sections:

2.100.030 Alternative claim resolution.

2.100.040 Measure 37 demands – Claim accrual.

2.100.050 Contents of demand for compensation – Place of filing.

2.100.060 Procedure and criteria for determining whether a claimant is entitled to compensation or waiver of a land use regulation.

2.100.070 Modification, removal, or waiver of land use regulation.

2.100.080 Private cause of action.

2.100.090 Application fee – Reimbursement of costs.

2.100.100 Transferability of land use regulation waiver.

2.100.010 Purpose.

The purpose of this chapter is to accomplish the following regarding demands for compensation under ORS Chapter 197, as amended by Ballot Measure 37, passed November 2, 2004:

Process demands for compensation quickly, openly, thoroughly, and consistently with the law; enable present real property owners making demands for compensation to have an adequate and fair opportunity to present their demands to the city’s decision-maker; provide the city’s decision-maker with the factual and analytical information necessary to adequately and fairly consider demands for compensation and take appropriate action under the alternatives provided by law; preserve and protect limited public funds; preserve and protect the interests of the community; and establish a record of decisions capable of withstanding legal review.

(Ord. 5583 § 1, 2004).

2.100.020 Definitions.

As used in this chapter, the following words and phrases mean:

(1) “City Manager” means the City Manager of the City, or his or her designee.

(2) “Claim” means a claim filed under Measure 37.

(3) “Exempt land use regulation” means a land use regulation that:

(a) Restricts or prohibits activities commonly and historically recognized as public nuisances under common law;

(b) 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;

(d) Restricts or prohibits the use of property for the purpose of selling pornography or performing nude dancing; or

(e) Was enacted prior to the date of acquisition of the property by the owner or a family member of the owner.

(4) “Family member” includes 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.

(5) “Land use regulation” includes:

(a) Any statute regulating the use of land or any interest therein;

(b) Administrative rules and goals of the Land Conservation and Development Commission; and

(6) “Owner” means the present owner of the property or any interest therein.

(7) “Valid claim” means a claim submitted by the owner of real property that is subject to a land use regulation adopted or enforced by the City that restricts the use of private real property in a manner that reduces the fair market value of the real property. (Ord. 5583 § 1, 2004).

2.100.030 Alternative claim resolution.

(1) As an alternative to a Measure 37 claim, a current owner of real property who seeks the waiver of a land use regulation may apply to the City Manager for said waiver on a form which the City shall provide for such purpose. Upon receipt of an application for waiver pursuant to this section, the City Manager shall schedule a meeting with the property owner and appropriate City representatives to review the owner’s claim. If the City Manager concludes that the property owner is entitled to some form of compensation or waiver pursuant to the provisions of Measure 37, City staff will work with the applicant in an effort to agree upon the minimum waiver which will allow the property owner his or her desired use while minimizing the negative impact on other properties within the City.

(2) If the property owner and the City Manager come to an agreement concerning the property owner’s entitlement to a Measure 37 waiver and the terms thereof, the owner shall thereafter file a formal Measure 37 claim pursuant to AMC 2.100.040 which thereafter will be presented to the City Council as a joint recommendation of the property owner and the City Manager.

(3) If the City Council approves the alternative claim resolution, the application fee provided in AMC 2.100.090 shall be waived. In addition, if the City Council concludes, following a public hearing, as provided at AMC 2.100.060(2), that it is in the public interest to do so, it may order that the private cause of action provided in AMC 2.100.080 shall not apply to any subsequent use of the subject property in conformance with the terms of the alternative claim resolution. (Ord. 5663 § 1, 2007; Ord. 5583 § 1, 2004).

2.100.040 Measure 37 demands – Claim accrual.

(1) 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 acquired the real property; the land use 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.

(2) Any current owner who intends to assert a Measure 37 claim shall make that intention known at the time the 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.

(3) 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 section shall be deemed to prevent the City from engaging in the alternative claim resolution process prior to the date the land use regulation is enforced against the current owner’s real property. (Ord. 5583 § 1, 2004).

2.100.050 Contents of demand for compensation – Place of filing.

(1) A Measure 37 demand for compensation shall be filed on a form created for such purpose by the City Manager.

(2) Demands for Measure 37 compensation shall be filed with the City Manager. (Ord. 5583 § 1, 2004).

2.100.060 Procedure and criteria for determining whether a claimant is entitled to compensation or waiver of a land use regulation.

(1) A land use regulation may be waived or compensation paid pursuant to the provisions of this chapter only if the Albany City Council determines that the claimant is entitled to such relief pursuant to the provisions of Measure 37, ORS 197.352.

(2) The determination of a claimant’s entitlement to waiver of a land use regulation or compensation shall be made following a public hearing held for that purpose.

(3) Notice of the public hearing shall be posted on or adjacent to the property and in two public places in the City of Albany and mailed to property owners of record having property within 100 feet of the claimant’s affected property. The notice shall be posted and mailed not fewer than 10 days prior to the public hearing. Failure to give or receive notice shall not invalidate any City Council decision.

(4) If a claimant is determined, by the Albany City Council, to be entitled to compensation pursuant to the terms of this chapter, the Albany City Council shall then determine whether to grant a waiver or pay compensation. This decision is legislative in nature and rests within the legislative discretion of the Albany City Council and should be based upon the Albany City Council’s determination of the best interests of the community.

(5) The Albany City Council may, by motion or resolution, supplement the procedures and criteria set forth in this section. (Ord. 5663 § 2, 2007; Ord. 5583 § 1, 2004).

2.100.070 Modification, removal, or waiver of land use regulation.

If the City Council directs that the land use regulation in question be modified, removed, or waived, with regard to the property subject to the Measure 37 claim, then the current owner shall be allowed to use the real property for such use as the modification or waiver allows. (Ord. 5583 § 1, 2004).

2.100.080 Private cause of action.

If the City Council’s waiver of a land use regulation causes a reduction in value of other property located in the City, 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 or to seek an injunction. A person who recovers for a reduction in value of property under this section, or who obtains an injunction, shall also be entitled to recover attorneys’ fees and costs from the owner(s) (of the property subject to the demand). This section does not create a cause of action against the City of Albany. In addition, the City Council may provide that a private cause of action not be created against a property owner who obtains a waiver pursuant to the alternative claim resolution procedure set forth in AMC 2.100.030. (Ord. 5583 § 1, 2004).

2.100.090 Application fee – Reimbursement of costs.

If a claim is denied and ultimately determined to be invalid, the claimant shall pay, as an application fee, an amount necessary to reimburse the City for all of the City’s costs incurred in processing the claim. This sum shall include, but not be limited to, the City’s attorneys’ fees, expert witness fees, appraisal fees, employee costs, and any and all other sums necessary to completely reimburse the City for expenses incurred in processing or defending against an invalid claim. If the costs remain unpaid 90 days after the City provides a detailed invoice demanding reimbursement of costs, a lien for those costs shall be recorded in the City lien dockets for the property which was the subject of the claim. If the alternative claims resolution process set forth at AMC 2.100.030 results in a joint recommendation for approval which is not approved by the City Council, the City will waive reimbursement of any fee/costs incurred prior to the decision of the City Council. (Ord. 5583 § 1, 2004).

2.100.100 Transferability of land use regulation waiver.

No waiver of a land use regulation pursuant to the provisions of this chapter shall be assignable or transferable to any third party except to the extent required by law. (Ord. 5663 § 3, 2007).

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