71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 4314
Senate Bill 976
Sponsored by Senator FERRIOLI; Senators ATKINSON, CLARNO, FISHER,
HARPER, HARTUNG, MESSERLE, MILLER, NELSON, STARR,
Representatives BUTLER, CLOSE, GARRARD, KRIEGER, KRUSE, MORGAN,
P SMITH, T SMITH, ZAUNER
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Allows current owner of real property to claim compensation for
restriction on use of land that limits or prohibits use of real
property or decreases fair market value of real property more
than 10 percent. Creates certain exceptions to right to
compensation. Authorizes current owner of lawfully created lot or
parcel to build single-family dwelling or divide lot or parcel if
current owner could have built dwelling or divided lot or parcel
when current owner acquired lot or parcel.
A BILL FOR AN ACT
Relating to land use regulation.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 10 of this 2001
Act: + } { +
(1)(a) 'Current owner' means:
(A) The holder of record of fee title interest in real property
or of an easement in real property;
(B) The contract purchaser of fee title interest in real
property or of an easement in real property; or
(C) A legal entity created in whole or in part by the preceding
owner to which the preceding owner transferred fee title interest
or an easement before, on or after the effective date of this
2001 Act.
(b) 'Current owner' does not mean:
(A) A state agency, board or commission;
(B) A local government as defined in ORS 197.015;
(C) A special district as defined in ORS 197.015;
(D) A port as defined in ORS 285A.603;
(E) Any other political subdivision of this state; or
(F) The United States Government or a subdivision thereof.
(2) 'Government entity' means a state agency, board or
commission in the executive branch of state government or a local
government as defined in ORS 197.015.
(3) 'Restriction on the use of land' means:
(a) A law, a statewide planning goal or an administrative rule
establishing standards or requirements that relate to land use
planning under ORS chapter 195, 196, 197, 215, 227 or 268 or that
limit generally accepted, reasonable and prudent agricultural or
forest activities.
(b) A comprehensive plan acknowledged under ORS 197.251 or a
land use regulation as defined in ORS 197.015.
(c) A regional framework plan or a land use ordinance adopted
by a metropolitan service district to implement a regional
framework plan. + }
SECTION 2. { + (1) If a government entity enacts or adopts a
restriction on the use of land on or after November 7, 2000, that
limits or prohibits a use permitted when the current owner
acquired the lot or parcel and decreases the fair market value of
real property by more than 10 percent, the current owner is
entitled to compensation equal to the full amount of the decrease
in fair market value of the real property when the claim is
filed.
(2) A current owner is not entitled to compensation under
subsection (1) of this section if the government entity enacts or
adopts a restriction on the use of land that:
(a) Limits or prohibits a use or activity that constitutes a
public or private nuisance as defined by historically and
commonly recognized nuisance laws.
(b) Implements a federal law or regulation to enable a
government entity to receive a federal benefit that directly
benefits the private real property that is the subject of the
claim including, but not limited to, a restriction on the use of
land to implement the National Flood Insurance Program
established under the National Flood Insurance Act of 1968 (P.L.
90-448, 42 U.S.C. 4011).
(c) Prevents commercial or industrial uses in an area zoned for
residential use.
(d) Provides access to public beaches.
(e) Limits or prohibits the use of property for the purposes of
selling pornography, performing nude dancing, selling alcoholic
beverages or operating a casino or gaming parlor.
(3) A government entity that pays compensation under subsection
(1) of this section may require the current owner to grant a
conservation easement that limits or prohibits uses for which
compensation is paid. + }
SECTION 3. { + (1) A current owner who claims a right to
compensation under section 2 of this 2001 Act:
(a) Shall provide the government entity that enacted or adopted
the restriction on the use of land with written notice of the
claim at least 90 days prior to filing an action for
compensation.
(b) Shall file the action in the circuit court for the county
in which the largest portion of the real property is located or
the circuit court for the county in which the current owner
resides.
(c) Is entitled to a trial by jury.
(2) If more than one government entity is responsible for the
restriction that limits or prohibits the use of land and
decreases the fair market value of a lot or parcel, the court
shall determine the proportion of each government entity's
responsibility for the restriction on the use of land and shall
require each government entity to contribute that proportion of
the award of compensation.
(3) If a judgment is entered awarding compensation greater than
the largest written offer tendered by the government entity
before the current owner filed the action, the court shall award
the current owner attorney fees, costs and disbursements and the
reasonable expenses incurred in the preparation and prosecution
of the action.
(4) An action for compensation under this section must be filed
within two years after the current owner receives actual notice
by mail of the enactment or adoption of a restriction on the use
of land.
(5) Nothing in this section prohibits a current owner and a
government entity from agreeing to an alternative in lieu of the
payment of compensation. + }
SECTION 4. { + (1) The governing body of a city or county or
its designee shall allow a current owner to establish a
single-family dwelling on a lawfully created lot or parcel if:
(a) The current owner could have built a single-family dwelling
on the date that the current owner acquired the lot or parcel;
and
(b) A restriction on the use of land enacted or adopted after
the date that the current owner acquired the lot or parcel, but
before November 7, 2000, prevents the current owner from building
the single-family dwelling.
(2) The governing body of the city or county shall allow the
current owner to build the dwelling authorized by subsection (1)
of this section upon proof from the current owner of compliance
with the land use criteria and interpretations of those criteria
in effect on the date that the current owner acquired the lot or
parcel. + }
SECTION 5. { + (1) The governing body of a city or county or
its designee shall allow the current owner of a lawfully created
lot or parcel to create additional parcels if:
(a) The current owner could have created additional parcels on
the date that the current owner acquired the lot or parcel; and
(b) A restriction on the use of land enacted or adopted after
the date that the current owner acquired the lot or parcel, but
before November 7, 2000, prevents the creation of additional
parcels.
(2) A current owner:
(a) May create additional parcels on one original lot or parcel
that is larger than 10 acres under this section upon proof of
compliance with the land use criteria and interpretations of
those criteria in effect on the date that the current owner
acquired the lot or parcel;
(b) Is entitled to build a single-family dwelling on each
parcel created under this section; and
(c) May not create more than six parcels from the original lot
or parcel and may not create more than three parcels in one year.
(3) If a parcel created under this section is located outside
an urban growth boundary, the parcel must contain at least five
acres.
(4) If a lot or parcel that is smaller than 10 acres otherwise
qualifies, the current owner may create two parcels. + }
SECTION 6. { + (1) A single-family dwelling authorized under
section 4 or 5 of this 2001 Act must comply with reasonable
siting standards for fire, health and safety. The standards may
not be applied in a manner that prohibits the siting of the
dwelling unless the governing body of the city or county
establishes that the lot or parcel does not have emergency
access, potable water or adequate capacity to dispose of sewage.
(2) A government entity may purchase the right granted by
section 4 or 5 of this 2001 Act in lieu of authorizing the uses
allowed by sections 4 and 5 of this 2001 Act. + }
SECTION 7. { + (1) A government entity may not implement or
interpret sections 1 to 10 of this 2001 Act by enacting or
adopting an administrative rule, a statewide planning goal, a
comprehensive plan provision, a land use regulation as defined in
ORS 197.015, a regional framework plan provision or a land use
ordinance adopted to implement a regional framework plan.
(2) An administrative rule, a statewide planning goal, a
comprehensive plan provision, a land use regulation, a regional
framework plan provision or a land use ordinance adopted to
implement a regional framework plan that is inconsistent with
this section may not be enforced and shall have no further force
and effect. + }
SECTION 8. { + If any phrase, clause or part of sections 1 to
10 of this 2001 Act is found invalid by a court of competent
jurisdiction, the remaining phrases, clauses or parts remain in
full force and effect. + }
SECTION 9. { + (1) A current owner may enforce the right
granted under section 4 or 5 of this 2001 Act by filing a
petition for a writ of mandamus under ORS 34.105 to 34.240.
(2) If the peremptory or alternative writ of mandamus is issued
to the government entity in favor of the current owner, the court
shall award attorney fees, costs and disbursements and the
reasonable expenses of preparation and prosecution of the
mandamus action. + }
SECTION 10. { + The provisions of sections 1 to 10 of this
2001 Act are cumulative and do not abrogate a right or remedy
under the Oregon Constitution or the United States Constitution
related to government action. + }
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