74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
House Bill 3540
Sponsored by Representative MACPHERSON, Senator PROZANSKI;
Senator SCHRADER
CHAPTER ................
AN ACT
Relating to compensation for loss of value of private real
property resulting from land use regulation; creating new
provisions; amending ORS 93.040 and 197.352; appropriating
money; and providing that this Act shall be referred to the
people for their approval or rejection.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2, 3 and 5 to 22 of this 2007 Act are
added to and made a part of ORS chapter 195. + }
SECTION 1a. { + ORS 197.352 is added to and made a part of
sections 5 to 22 of this 2007 Act. + }
{ +
DEFINITIONS + }
SECTION 2. { + As used in this section and sections 3 and 5 to
22 of this 2007 Act:
(1) 'Acquisition date' means the date described in section 21
of this 2007 Act.
(2) 'Claim' means a written demand for compensation filed
under:
(a) ORS 197.352, as in effect immediately before the effective
date of this 2007 Act; or
(b) Sections 12 to 14 of this 2007 Act and ORS 197.352, as in
effect on and after the effective date of this 2007 Act.
(3) 'Enacted' means enacted, adopted or amended.
(4) 'Fair market value' means the value of property as
determined under section 21b of this 2007 Act.
(5) 'Farming practice' has the meaning given that term in ORS
30.930.
(6) 'Federal law' means:
(a) A statute, regulation, order, decree or policy enacted by a
federal entity or by a state entity acting under authority
delegated by the federal government;
(b) A requirement contained in a plan or rule enacted by a
compact entity; or
(c) A requirement contained in a permit issued by a federal or
state agency pursuant to a federal statute or regulation.
(7) 'File' means to submit a document to a public entity.
(8) 'Forest practice' has the meaning given that term in ORS
527.620.
Enrolled House Bill 3540 (HB 3540-C) Page 1
(9) 'Ground water restricted area' means an area designated as
a critical ground water area or as a ground water limited area by
the Water Resources Department or Water Resources Commission
before the effective date of this 2007 Act.
(10) 'High-value farmland' means:
(a) High-value farmland as described in ORS 215.710 that is
land in an exclusive farm use zone or a mixed farm and forest
zone, except that the dates specified in ORS 215.710 (2), (4) and
(6) are the effective date of this 2007 Act.
(b) Land west of U.S. Highway 101 that is composed
predominantly of the following soils in Class III or IV or
composed predominantly of a combination of the soils described in
ORS 215.710 (1) and the following soils:
(A) Subclassification IIIw, specifically Ettersburg Silt Loam
and Croftland Silty Clay Loam;
(B) Subclassification IIIe, specifically Klooqueth Silty Clay
Loam and Winchuck Silt Loam; and
(C) Subclassification IVw, specifically Huffling Silty Clay
Loam.
(c) Land that is in an exclusive farm use zone or a mixed farm
and forest zone and that on the date of adjournment sine die of
the 2007 regular session of the Seventy-fourth Legislative
Assembly is:
(A) Within the place of use for a permit, certificate or decree
for the use of water for irrigation issued by the Water Resources
Department;
(B) Within the boundaries of a district, as defined in ORS
540.505; or
(C) Within the boundaries of a diking district formed under ORS
chapter 551.
(d) Land that contains not less than five acres planted in wine
grapes.
(e) Land that is in an exclusive farm use zone and that is at
an elevation between 200 and 1,000 feet above mean sea level,
with an aspect between 67.5 and 292.5 degrees and a slope between
zero and 15 percent, and that is located within:
(A) The Southern Oregon viticultural area as described in 27
C.F.R. 9.179;
(B) The Umpqua Valley viticultural area as described in 27
C.F.R. 9.89; or
(C) The Willamette Valley viticultural area as described in 27
C.F.R. 9.90.
(f) Land that is in an exclusive farm use zone and that is no
more than 3,000 feet above mean sea level, with an aspect between
67.5 and 292.5 degrees and a slope between zero and 15 percent,
and that is located within:
(A) The portion of the Columbia Gorge viticultural area as
described in 27 C.F.R. 9.178 that is within the State of Oregon;
(B) The Rogue Valley viticultural area as described in 27
C.F.R. 9.132;
(C) The portion of the Columbia Valley viticultural area as
described in 27 C.F.R. 9.74 that is within the State of Oregon;
(D) The portion of the Walla Walla Valley viticultural area as
described in 27 C.F.R. 9.91 that is within the State of Oregon;
or
(E) The portion of the Snake River Valley viticultural area as
described in 27 C.F.R. 9.208 that is within the State of Oregon.
(11) 'High-value forestland' means land:
(a) That is in a forest zone or a mixed farm and forest zone,
that is located in western Oregon and composed predominantly of
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soils capable of producing more than 120 cubic feet per acre per
year of wood fiber and that is capable of producing more than
5,000 cubic feet per year of commercial tree species; or
(b) That is in a forest zone or a mixed farm and forest zone,
that is located in eastern Oregon and composed predominantly of
soils capable of producing more than 85 cubic feet per acre per
year of wood fiber and that is capable of producing more than
4,000 cubic feet per year of commercial tree species.
(12) 'Home site approval' means approval of the subdivision or
partition of property or approval of the establishment of a
dwelling on property.
(13) 'Just compensation' means:
(a) Relief under sections 5 to 11 of this 2007 Act for land use
regulations enacted on or before January 1, 2007; and
(b) Relief under sections 12 to 14 of this 2007 Act for land
use regulations enacted after January 1, 2007.
(14) 'Land use regulation' means:
(a) A statute that establishes a minimum lot or parcel size;
(b) A provision in ORS 227.030 to 227.300, 227.350, 227.400,
227.450 or 227.500 or in ORS chapter 215 that restricts the
residential use of private real property;
(c) A provision of a city comprehensive plan, zoning ordinance
or land division ordinance that restricts the residential use of
private real property zoned for residential use;
(d) A provision of a county comprehensive plan, zoning
ordinance or land division ordinance that restricts the
residential use of private real property;
(e) A provision of the Oregon Forest Practices Act or an
administrative rule of the State Board of Forestry that regulates
a forest practice and that implements the Oregon Forest Practices
Act;
(f) ORS 561.191, a provision of ORS 568.900 to 568.933 or an
administrative rule of the State Department of Agriculture that
implements ORS 561.191 or 568.900 to 568.933;
(g) An administrative rule or goal of the Land Conservation and
Development Commission; or
(h) A provision of a Metro functional plan that restricts the
residential use of private real property.
(15) 'Measure 37 permit' means a final decision by Metro, a
city or a county to authorize the development, subdivision or
partition or other use of property pursuant to a waiver.
(16) 'Owner' means:
(a) The owner of fee title to the property as shown in the deed
records of the county where the property is located;
(b) The purchaser under a land sale contract, if there is a
recorded land sale contract in force for the property; or
(c) If the property is owned by the trustee of a revocable
trust, the settlor of a revocable trust, except that when the
trust becomes irrevocable only the trustee is the owner.
(17) 'Property' 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.
(18) 'Protection of public health and safety' means a law,
rule, ordinance, order, policy, permit or other governmental
authorization that restricts a use of property in order to reduce
the risk or consequence of fire, earthquake, landslide, flood,
storm, pollution, disease, crime or other natural or human
Enrolled House Bill 3540 (HB 3540-C) Page 3
disaster or threat to persons or property including, but not
limited to, building and fire codes, health and sanitation
regulations, solid or hazardous waste regulations and pollution
control regulations.
(19) 'Public entity' means the state, Metro, a county or a
city.
(20) 'Urban growth boundary' has the meaning given that term in
ORS 195.060.
(21) 'Waive' or 'waiver' means an action or decision of a
public entity to modify, remove or not apply one or more land use
regulations under sections 5 to 22 of this 2007 Act or ORS
197.352, as in effect immediately before the effective date of
this 2007 Act, to allow the owner to use property for a use
permitted when the owner acquired the property.
(22) 'Zoned for residential use' means zoning that has as its
primary purpose single-family residential use. + }
{ +
LEGISLATIVE POLICY + }
{ +
ON FAIRNESS TO PROPERTY OWNERS + }
SECTION 3. { + (1) The Legislative Assembly finds that:
(a) In some situations, land use regulations unfairly burden
particular property owners.
(b) To address these situations, it is necessary to amend
Oregon's land use statutes to provide just compensation for
unfair burdens caused by land use regulations.
(2) The purpose of sections 5 to 22 of this 2007 Act and the
amendments to Ballot Measure 37 (2004) is to modify Ballot
Measure 37 (2004) to ensure that Oregon law provides just
compensation for unfair burdens while retaining Oregon's
protections for farm and forest uses and the state's water
resources. + }
{ +
BALLOT MEASURE 37 + }
SECTION 4. ORS 197.352 is amended to read:
197.352. { - The following provisions are added to and made a
part of ORS chapter 197: - }
(1) If a public entity enacts { - or enforces a new land use
regulation or enforces a land use regulation enacted prior to
December 2, 2004, that restricts - } { + one or more land use
regulations that restrict + } the { + residential + } use of
private real property or { - any interest therein - } { + a
farming or forest practice + } and { - has the effect of
reducing - } { + that reduce + }the fair market value of the
property,
{ - or any interest therein, - } then the owner of the
property shall be
{ - paid just compensation - } { + entitled to just
compensation from the public entity that enacted the land use
regulation or regulations as provided in sections 12 to 14 of
this 2007 Act + }.
(2) Just compensation { + under sections 12 to 14 of this 2007
Act + } shall be { - equal to - } { + based on + } the
reduction in the fair market value of the { - affected - }
property { - interest - } resulting from
Enrolled House Bill 3540 (HB 3540-C) Page 4
{ - enactment or enforcement of - } the land use regulation
{ - as of the date the owner makes written demand for
compensation under this section - } .
(3) Subsection (1) of this section shall not apply to land use
regulations { + that were enacted prior to the claimant's
acquisition date or to land use regulations + }:
{ - (A) - } { + (a) + } Restricting or prohibiting
activities commonly and historically recognized as public
nuisances under common law { - . This subsection shall be
construed narrowly in favor of a finding of compensation under
this section - } ;
{ - (B) - } { + (b) + } Restricting or prohibiting
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 - } ;
{ - (C) - } { + (c) + } To the extent the land use
regulation is required to comply with federal law; { + or + }
{ - (D) - } { + (d) + } Restricting or prohibiting the use
of a property for the purpose of selling pornography or
performing nude dancing.
{ - Nothing in this subsection, however, is intended to affect
or alter rights provided by the Oregon or United States
Constitutions; or - }
{ - (E) Enacted prior to the date of acquisition of the
property by the owner or a family member of the owner who owned
the subject property prior to acquisition or inheritance by the
owner, whichever occurred first. - }
{ - (4) Just compensation under subsection (1) of this
section shall be due the owner of the property if the land use
regulation continues to be enforced against the property 180 days
after the owner of the property makes written demand for
compensation under this section to the public entity enacting or
enforcing the land use regulation. - }
{ - (5) For claims arising from land use regulations enacted
prior to December 2, 2004, written demand for compensation under
subsection (4) shall be made within two years of December 2,
2004, or the date the public entity applies the land use
regulation as an approval criteria to an application submitted by
the owner of the property, whichever is later. For claims arising
from land use regulations enacted after December 2, 2004, written
demand for compensation under subsection (4) shall be made within
two years of the enactment of the land use regulation, or the
date the owner of the property submits a land use application in
which the land use regulation is an approval criteria, whichever
is later. - }
{ - (6) If a land use regulation continues to apply to the
subject property more than 180 days after the present owner of
the property has made written demand for compensation under this
section, the present owner of the property, or any interest
therein, shall have a cause of action for compensation under this
section in the circuit court in which the real property is
located, and the present owner of the real property shall be
entitled to reasonable attorney fees, expenses, costs, and other
disbursements reasonably incurred to collect the
compensation. - }
{ + (4)(a) Subsection (3)(a) of this section shall be
construed narrowly in favor of granting just compensation under
this section. Nothing in subsection (3) of this section is
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intended to affect or alter rights provided by the Oregon or
United States Constitution.
(b) Subsection (3)(b) of this section does not apply to any
farming or forest practice regulation that is enacted after
January 1, 2007, unless the primary purpose of the regulation is
the protection of human health and safety.
(c) Subsection (3)(c) of this section does not apply to any
farming or forest practice regulation that is enacted after
January 1, 2007, unless the public entity enacting the regulation
has no discretion under federal law to decline to enact the
regulation. + }
{ - (7) - } { + (5) + } A { - metropolitan service
district, city, or county, or state agency - } { + public
entity + } may adopt or apply procedures for the processing of
claims under { - this section, but in no event shall these
procedures act as a prerequisite to the filing of a compensation
claim under subsection (6) of this section, nor shall the failure
of an owner of property to file an application for a land use
permit with the local government serve as grounds for dismissal,
abatement, or delay of a compensation claim under subsection (6)
of this section - } { + sections 12 to 24 of this 2007 Act + }.
{ - (8) - } { + (6) + } { - Notwithstanding any other
state statute or the availability of funds under subsection (10)
of this section, in lieu of payment of just compensation under
this section, the governing body responsible for enacting - }
{ + The public entity that enacted + } the land use regulation
{ - may modify, remove, or not to apply the land use regulation
or land use regulations to allow the owner to use the property
for a use permitted at the time the owner acquired the
property - } { + that gives rise to a claim under subsection
(1) of this section shall provide just compensation as required
under sections 12 to 24 of this 2007 Act + }.
{ - (9) - } { + (7) + } A decision by a { - governing
body under this section shall not be considered a - }
{ + public entity that an owner qualifies for just compensation
under sections 5 to 22 of this 2007 Act and a decision by a
public entity on the nature and extent of that compensation are
not + } land use { - decision as defined in ORS 197.015
(11) - } { + decisions + }.
{ - (10) Claims made under this section shall be paid from
funds, if any, specifically allocated by the legislature, city,
county, or metropolitan service district for payment of claims
under this section. Notwithstanding the availability of funds
under this subsection, a metropolitan service district, city,
county, or state agency shall have discretion to use available
funds to pay claims or to modify, remove, or not apply a land use
regulation or land use regulations pursuant to subsection (6) of
this section. If a claim has not been paid within two years from
the date on which it accrues, the owner shall be allowed to use
the property as permitted at the time the owner acquired the
property. - }
{ - (11) Definitions - for purposes of this section: - }
{ - (A) 'Family member' shall include 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. - }
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{ - (B) 'Land use regulation' shall include: - }
{ - (i) Any statute regulating the use of land or any
interest therein; - }
{ - (ii) Administrative rules and goals of the Land
Conservation and Development Commission; - }
{ - (iii) Local government comprehensive plans, zoning
ordinances, land division ordinances, and transportation
ordinances; - }
{ - (iv) Metropolitan service district regional framework
plans, functional plans, planning goals and objectives; and - }
{ - (v) Statutes and administrative rules regulating farming
and forest practices. - }
{ - (C) 'Owner' is the present owner of the property, or any
interest therein. - }
{ - (D) 'Public entity' shall include the state, a
metropolitan service district, a city, or a county. - }
{ - (12) - } { + (8) + } The { - remedy - }
{ + remedies + } created by { - this section is - }
{ + sections 5 to 22 of this 2007 Act are + } in addition to any
other remedy under the Oregon or United States
{ - Constitutions - } { + Constitution + }, and { - is - }
{ + are + } not intended to modify or replace any
{ - other - } { + constitutional + } remedy.
{ - (13) - } { + (9) + } If any portion or portions of this
section are declared invalid by a court of competent
jurisdiction, the remaining portions of this section shall remain
in full force and effect.
{ +
BALLOT MEASURE 37 CLAIMS MADE + }
{ +
ON OR BEFORE THE DATE OF ADJOURNMENT + }
{ +
SINE DIE OF THE 2007 REGULAR SESSION + }
{ +
OF THE SEVENTY-FOURTH LEGISLATIVE ASSEMBLY + }
{ +
(Generally) + }
SECTION 5. { + A claimant that filed a claim under ORS 197.352
on or before the date of adjournment sine die of the 2007 regular
session of the Seventy-fourth Legislative Assembly is entitled to
just compensation as provided in:
(1) Section 6 or 7 of this 2007 Act, at the claimant's
election, if the property described in the claim is located
entirely outside any urban growth boundary and entirely outside
the boundaries of any city;
(2) Section 9 of this 2007 Act if the property described in the
claim is located, in whole or in part, within an urban growth
boundary; or
(3) A waiver issued before the effective date of this 2007 Act
to the extent that the claimant's use of the property complies
with the waiver and the claimant has a common law vested right on
the effective date of this 2007 Act to complete and continue the
use described in the waiver. + }
{ +
(Claims Relating to Property + }
{ +
Outside Urban Growth Boundaries) + }
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SECTION 6. { + (1) A claimant that filed a claim under ORS
197.352 on or before the date of adjournment sine die of the 2007
regular session of the Seventy-fourth Legislative Assembly is
eligible for three home site approvals on the property if the
requirements of this section and sections 8 and 11 of this 2007
Act are met. The procedure for obtaining home site approvals
under this section is set forth in section 8 of this 2007 Act.
(2) The number of lots, parcels or dwellings that may be
approved for property under this section may not exceed the
lesser of:
(a) The number of lots, parcels or dwellings described in a
waiver issued by the state before the effective date of this 2007
Act or, if a waiver was not issued, the number of lots, parcels
or dwellings described in the claim filed with the state; or
(b) Three, except that if there are existing dwellings on the
property or the property contains more than one lot or parcel,
the number of lots, parcels or dwellings that may be established
is reduced so that the combined number of lots, parcels or
dwellings, including existing lots, parcels or dwellings located
on or contained within the property, does not exceed three.
(3) Notwithstanding subsection (2) of this section, a claimant
that otherwise qualifies for relief under this section may
establish at least one additional lot, parcel or dwelling on the
property. In addition, if the number of lots, parcels or
dwellings described in a waiver issued by the state before the
effective date of this 2007 Act or, if a waiver was not issued,
the number of lots, parcels or dwellings described in the claim
filed with the state is more than three, the claimant may amend
the claim to reduce the number to no more than three by filing
notice of the amendment with the form required by section 8 of
this 2007 Act.
(4) If a claim was for a use other than a subdivision or
partition of property, or other than approval for establishing a
dwelling on the property, the claimant may amend the claim to
seek one or more home site approvals under this section. A person
amending a claim under this subsection may not make a claim under
section 7 of this 2007 Act.
(5) If multiple claims were filed for the same property, the
number of lots, parcels or dwellings that may be established for
purposes of subsection (2)(a) of this section is the number of
lots, parcels or dwellings in the most recent waiver issued by
the state before the effective date of this 2007 Act or, if a
waiver was not issued, the most recent claim filed with the
state, but not more than three in any case.
(6) To qualify for a home site approval under this section, the
claimant must have filed a claim for the property with both the
state and the county in which the property is located. In
addition, regardless of whether a waiver was issued by the state
or the county before the effective date of this 2007 Act, to
qualify for a home site approval under this section the claimant
must establish that:
(a) The claimant is an owner of the property;
(b) All owners of the property have consented in writing to the
claim;
(c) The property is located entirely outside any urban growth
boundary and entirely outside the boundaries of any city;
(d) One or more land use regulations prohibit establishing the
lot, parcel or dwelling;
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(e) The establishment of the lot, parcel or dwelling is not
prohibited by a land use regulation described in ORS 197.352 (3);
and
(f) On the claimant's acquisition date, the claimant lawfully
was permitted to establish at least the number of lots, parcels
or dwellings on the property that are authorized under this
section.
(7) If the claim was filed after December 4, 2006, to issue a
home site approval under this section, the Department of Land
Conservation and Development must verify that the claim was filed
in compliance with the applicable rules of the Land Conservation
and Development Commission and the Oregon Department of
Administrative Services.
(8) Except as provided in section 11 of this 2007 Act, if the
Department of Land Conservation and Development has issued a
final order with a specific number of home site approvals for a
property under this section, the claimant may seek other
governmental authorizations required by law for the partition or
subdivision of the property or for the development of any
dwelling authorized, and a land use regulation enacted by the
state or county that has the effect of prohibiting the partition
or subdivision, or the dwelling, does not apply to the review of
those authorizations. + }
SECTION 7. { + (1) A claimant that filed a claim under ORS
197.352 on or before the date of adjournment sine die of the 2007
regular session of the Seventy-fourth Legislative Assembly for
property that is not high-value farmland or high-value forestland
and that is not in a ground water restricted area is eligible for
four to 10 home site approvals for the property if the
requirements of this section and sections 8 and 11 of this 2007
Act are met. The procedure for obtaining home site approvals
under this section is set forth in section 8 of this 2007 Act.
(2) The number of lots, parcels or dwellings that may be
established on the property under this section may not exceed the
lesser of:
(a) The number of lots, parcels or dwellings described in a
waiver issued by the state before the effective date of this 2007
Act or, if a waiver was not issued, the number of lots, parcels
or dwellings described in the claim filed with the state;
(b) 10, except that if there are existing dwellings on the
property or the property contains more than one lot or parcel,
the number of lots, parcels or dwellings that may be established
is reduced, so that the combined number of lots, parcels or
dwellings, including existing lots, parcels or dwellings located
on or contained within the property, does not exceed 10; or
(c) The number of home site approvals with a total value that
represents just compensation for the reduction in fair market
value caused by the enactment of one or more land use regulations
that were the basis for the claim, as set forth in subsection (6)
of this section.
(3) If the number of lots, parcels or dwellings described in a
waiver issued by the state before the effective date of this 2007
Act or, if a waiver was not issued, the number of lots, parcels
or dwellings described in the claim filed with the state is more
than 10, the claimant may amend the claim to reduce the number to
no more than 10 by filing notice of the amendment with the form
required by section 8 of this 2007 Act.
(4) If multiple claims were filed for the same property, the
number of lots, parcels or dwellings that may be established for
purposes of subsection (2)(a) of this section is the number of
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lots, parcels or dwellings in the most recent waiver issued by
the state before the effective date of this 2007 Act or, if a
waiver was not issued, the most recent claim filed with the
state, but not more than 10 in any case.
(5) To qualify for a home site approval under this section, the
claimant must have filed a claim for the property with both the
state and the county in which the property is located. In
addition, regardless of whether a waiver was issued by the state
or the county before the effective date of this 2007 Act to
qualify for a home site approval under this section, the claimant
must establish that:
(a) The claimant is an owner of the property;
(b) All owners of the property have consented in writing to the
claim;
(c) The property is located entirely outside any urban growth
boundary and entirely outside the boundaries of any city;
(d) One or more land use regulations prohibit establishing the
lot, parcel or dwelling;
(e) The establishment of the lot, parcel or dwelling is not
prohibited by a land use regulation described in ORS 197.352 (3);
(f) On the claimant's acquisition date, the claimant lawfully
was permitted to establish at least the number of lots, parcels
and dwellings on the property that are authorized under this
section; and
(g) The enactment of one or more land use regulations, other
than land use regulations described in ORS 197.352 (3), that are
the basis for the claim caused a reduction in the fair market
value of the property that is equal to or greater than the fair
market value of the home site approvals that may be established
on the property under subsection (2) of this section, with the
reduction in fair market value measured as set forth in
subsection (6) of this section.
(6) The reduction in the fair market value of the property
caused by the enactment of one or more land use regulations that
were the basis for the claim is equal to the decrease, 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. If the claim
is based on the enactment of more than one land use regulation
enacted on different dates, the reduction in the fair market
value of the property caused by each regulation shall be
determined separately and the values added together to calculate
the total reduction in fair market value. The reduction in fair
market value shall be adjusted by any ad valorem property taxes
not paid as a result of any special assessment of the property
under ORS 308A.050 to 308A.128, 321.257 to 321.390, 321.700 to
321.754 or 321.805 to 321.855, plus interest, offset by any
severance taxes paid by the claimant and by any recapture of
potential additional tax liability that the claimant has paid or
will pay for the property if the property is disqualified from
special assessment under ORS 308A.703. Interest shall be computed
under this subsection using 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.
(7) For the purposes of subsection (6) of this section, a
claimant must provide an appraisal showing the fair market value
of the property one year before the enactment of the land use
regulation that was the basis for the claim and the fair market
Enrolled House Bill 3540 (HB 3540-C) Page 10
value of the property one year after the enactment. The appraisal
also must show the fair market value of each home site approval
to which the claimant is entitled under section 6 (2) of this
2007 Act, along with evidence of any ad valorem property taxes
not paid, any severance taxes paid and any recapture of
additional tax liability that the claimant has paid or will pay
for the property if the property is disqualified from special
assessment under ORS 308A.703. 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 subsection (6) of this section. The
appraisal must:
(a) Be prepared by a person certified under ORS chapter 674 or
a person registered under ORS chapter 308;
(b) Comply with the Uniform Standards of Professional Appraisal
Practice, as authorized by the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989; and
(c) Expressly determine the highest and best use of the
property at the time the land use regulation was enacted.
(8) Relief may not be granted under this section if the highest
and best use of the property was not residential use at the time
the land use regulation was enacted.
(9) If the claim was filed after December 4, 2006, to issue a
home site approval under this section, the Department of Land
Conservation and Development must verify that the claim was filed
in compliance with the applicable rules of the Land Conservation
and Development Commission and the Oregon Department of
Administrative Services.
(10) Except as provided in section 11 of this 2007 Act, if the
Department of Land Conservation and Development has issued a
final order with a specific number of home site approvals for the
property under this section, the claimant may seek other
governmental authorizations required by law for the subdivision
or partition of the property or for the development of any
dwelling authorized, and a land use regulation enacted by the
state or county that has the effect of prohibiting the
subdivision or partition, or the dwelling, does not apply to the
review of those authorizations. + }
SECTION 8. { + (1) No later than 120 days after the effective
date of this 2007 Act, the Department of Land Conservation and
Development shall send notice to all the following claimants that
filed a claim for property outside an urban growth boundary:
(a) A claimant whose claim was denied by the state before the
effective date of this 2007 Act, but who may become eligible for
just compensation because of section 21 (2) of this 2007 Act or
any other provision of sections 5 to 22 of this 2007 Act;
(b) A claimant whose claim was approved by the state before the
effective date of this 2007 Act; and
(c) A claimant whose claim has not been approved or denied by
the state before the effective date of this 2007 Act.
(2) The notice required by subsection (1) of this section must:
(a) Explain the claimant's options if the claimant wishes to
subdivide, partition or establish a dwelling on the property
under sections 5 to 22 of this 2007 Act;
(b) Identify any information that the claimant must file; and
(c) Provide a form for the claimant's use.
(3) A claimant must choose whether to proceed under section 6
or 7 of this 2007 Act by filing the form provided by the
department within 90 days after the date the department mails the
notice and form required under subsection (1) of this section. In
Enrolled House Bill 3540 (HB 3540-C) Page 11
addition, the claimant must file any information required in the
notice. If the claimant fails to file the form within 90 days
after the date the department mails the notice, the claimant is
not entitled to relief under section 6 or 7 of this 2007 Act.
(4) The department shall review the claims in the order in
which the department receives the forms required under subsection
(3) of this section. In addition to reviewing the claim, the
department shall review the department's record on the claim, the
form required under subsection (3) of this section, any new
material from the claimant and any other information required by
sections 5 to 22 of this 2007 Act to ensure that the requirements
of this section and section 6 or 7 of this 2007 Act are met. The
department shall provide a copy of the material submitted by the
claimant to the county where the property is located and consider
written comments from the county that are timely filed with the
department. If the department determines that the only land use
regulations that restrict the claimant's use of the property are
regulations that were enacted by the county, the department shall
transfer the claim to the county where the property is located
and the claim shall be processed by the county in the same manner
as prescribed by this section for the processing of claims by the
department. The county must consider any written comments from
the department that are timely filed with the county.
(5) If the claimant elects to obtain relief under section 7 of
this 2007 Act, the claimant must file an appraisal that
establishes the reduction in the fair market value of the
property as required by section 7 (6) of this 2007 Act. 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 section 7
(6) of this 2007 Act. The appraisal must be filed with the
department or, if the claim is being processed by the county,
with the county within 180 days after the date the claimant files
the election to obtain relief under section 7 of this 2007 Act. A
claimant that elects to obtain relief under section 7 of this
2007 Act may change that election to obtain relief under section
6 of this 2007 Act, but only if the claimant provides written
notice of the change on or before the date the appraisal is
filed. If a county is processing the claim, the county may impose
a fee for the review of a claim under section 7 of this 2007 Act
in an amount that does not exceed the actual and reasonable cost
of the review.
(6) The department or the county shall review claims as quickly
as possible, consistent with careful review of the claim. The
department shall report to the Joint Legislative Audit Committee
on or before March 31, 2008, concerning the department's progress
and the counties' progress in completing review of claims under
sections 6 and 7 of this 2007 Act.
(7) The department's final order and a county's final decision
on a claim under section 6 or 7 of this 2007 Act must either deny
the claim or approve the claim. If the order or decision approves
the claim, the order or decision must state the number of home
site approvals issued for the property and may contain other
terms that are necessary to ensure that the use of the property
is lawful. + }
{ +
(Claims Relating to Property Within + }
{ +
Urban Growth Boundaries) + }
Enrolled House Bill 3540 (HB 3540-C) Page 12
SECTION 9. { + (1) A claimant that filed a claim under ORS
197.352 on or before the date of adjournment sine die of the 2007
regular session of the Seventy-fourth Legislative Assembly for
property located, in whole or in part, within an urban growth
boundary may establish one to 10 single-family dwellings on the
portion of the property located within the urban growth boundary.
(2) The number of single-family dwellings that may be
established on the portion of the property located within the
urban growth boundary under this section may not exceed the
lesser of:
(a) The number of single-family dwellings described in a waiver
issued by Metro, a city or a county before the effective date of
this 2007 Act or, if a waiver was not issued, the number
described in the claim filed with Metro, a city or a county;
(b) 10, except that if there are existing dwellings on the
property, the number of single-family dwellings that may be
established is reduced so that the maximum number of dwellings,
including existing dwellings located on the property, does not
exceed 10; or
(c) The number of single-family dwellings the total value of
which represents just compensation for the reduction in fair
market value caused by the enactment of one or more land use
regulations that were the basis for the claim, as set forth in
subsection (6) of this section.
(3) If the number of single-family dwellings described in a
waiver issued by Metro, a city or a county before the effective
date of this 2007 Act or, if a waiver was not issued, the number
described in the claim filed with Metro, a city or a county is
more than 10, the claimant may amend the claim to reduce the
number to no more than 10 by filing notice of the amendment with
the information required by section 10 of this 2007 Act.
(4) If multiple claims were filed for the same property, the
number of single-family dwellings that may be established for
purposes of subsection (2)(a) of this section is the number in
the most recent waiver issued by Metro, a city or a county before
the effective date of this 2007 Act or, if a waiver was not
issued, the most recent claim filed with Metro, a city or a
county, but not more than 10 in any case.
(5) To qualify for the relief provided by this section, the
claimant must have filed a claim for the property with the city
or county in which the property is located. In addition,
regardless of whether a waiver was issued by Metro, a city or a
county before the effective date of this 2007 Act, to qualify for
relief under this section, the claimant must establish that:
(a) The claimant is an owner of the property;
(b) All owners of the property have consented in writing to the
claim;
(c) The property is located, in whole or in part, within an
urban growth boundary;
(d) On the claimant's acquisition date, the claimant lawfully
was permitted to establish at least the number of dwellings on
the property that are authorized under this section;
(e) The property is zoned for residential use;
(f) One or more land use regulations prohibit establishing the
single-family dwellings;
(g) The establishment of the single-family dwellings is not
prohibited by a land use regulation described in ORS 197.352 (3);
(h) The land use regulation described in paragraph (f) of this
subsection was enacted after the date the property, or any
Enrolled House Bill 3540 (HB 3540-C) Page 13
portion of the property, was brought into the urban growth
boundary;
(i) If the property is located within the boundaries of Metro,
the land use regulation that is the basis for the claim was
enacted after the date the property was included within the
boundaries of Metro;
(j) If the property is located within a city, the land use
regulation that is the basis for the claim was enacted after the
date the property was annexed to the city; and
(k) The enactment of one or more land use regulations, other
than land use regulations described in ORS 197.352 (3), that are
the basis of the claim caused a reduction in the fair market
value of the property, as determined under subsection (6) of this
section, that is equal to or greater than the fair market value
of the single-family dwellings that may be established on the
property under subsection (2) of this section.
(6) The reduction in the fair market value of the property
caused by the enactment of one or more land use regulations that
were the basis for the claim is equal to the decrease, 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. If the claim
is based on the enactment of more than one land use regulation
enacted on different dates, the reduction in the fair market
value of the property caused by each regulation shall be
determined separately and the values added together to calculate
the total reduction in fair market value. The reduction in fair
market value shall be adjusted by any ad valorem property taxes
not paid as a result of any special assessment of the property
under ORS 308A.050 to 308A.128, 321.257 to 321.390, 321.700 to
321.754 or 321.805 to 321.855, plus interest, offset by any
severance taxes paid by the claimant and by any recapture of
potential additional tax liability that the claimant has paid or
will pay for the property if the property is disqualified from
special assessment under ORS 308A.703. Interest shall be computed
under this subsection using 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.
(7) For the purposes of subsection (6) of this section, a
claimant must provide an appraisal showing the fair market value
of the property one year before the enactment of the land use
regulation that was the basis for the claim and the fair market
value of the property one year after the enactment. The appraisal
also must show the fair market value of each single-family
dwelling to which the claimant is entitled under subsection (2)
of this section, along with evidence of any ad valorem property
taxes not paid, any severance taxes paid and any recapture of
additional tax liability that the owner has paid or will pay for
the property if the property is disqualified from special
assessment under ORS 308A.703. 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 section 7 (6) of this 2007 Act. The
appraisal must:
(a) Be prepared by a person certified under ORS chapter 674 or
a person registered under ORS chapter 308;
Enrolled House Bill 3540 (HB 3540-C) Page 14
(b) Comply with the Uniform Standards of Professional Appraisal
Practice, as authorized by the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989; and
(c) Expressly determine the highest and best use of the
property at the time the land use regulation was enacted.
(8) Relief may not be granted under this section if the highest
and best use of the property was not residential use at the time
the land use regulation was enacted.
(9) When Metro, a city or a county has issued a final decision
authorizing one or more single-family dwellings under this
section on the portion of the property located within the urban
growth boundary, the claimant may seek other governmental
authorizations required by law for that use, and a land use
regulation enacted by a public entity that has the effect of
prohibiting the use does not apply to the review of those
authorizations, except as provided in section 11 of this 2007
Act. If Metro is reviewing a claim for a property, and a city or
a county is reviewing a claim for the same property, Metro and
the city or county shall coordinate the review and decisions and
may:
(a) Provide that one of the public entities be principally
responsible for the review; and
(b) Provide that the decision of each of the public entities is
contingent on the decision of the other public entity.
(10) The only types of land use that are authorized by this
section are the subdivision or partition of land for one or more
single-family dwellings, or the establishment of one or more
single-family dwellings on land on which the dwellings would not
otherwise be allowed. + }
SECTION 10. { + (1) If Metro, a city or a county issued a
waiver before the effective date of this 2007 Act for property
located, in whole or in part, within an urban growth boundary,
the public entity that issued the waiver must review the claim,
the record on the claim and the waiver to determine whether the
claimant is entitled to relief under section 9 of this 2007 Act.
If the public entity that issued the waiver lacks information
needed to determine whether the claimant is entitled to relief,
the public entity shall issue a written request to the claimant
for the required information. The claimant must file the required
information within 90 days after receiving the request. If the
claimant does not file the information, the public entity shall
review the claim based on the information that is available. The
public entity shall complete a tentative review no later than 240
days after the effective date of this 2007 Act. The public entity
shall provide written notice to the claimant, the Department of
Land Conservation and Development and any other person entitled
to notice of the tentative determination as to whether the
claimant qualifies for relief under section 9 of this 2007 Act
and, if so, the specific number of single-family dwellings that
the public entity proposes to authorize. The notice must state
that the recipient has 15 days to submit evidence or arguments in
response to the tentative determination, after which the public
entity shall make a final determination. A public entity shall
make the final determination under this subsection within 300
days after the effective date of this 2007 Act.
(2) If Metro, a city or a county has not made a final decision
before the effective date of this 2007 Act on a claim filed for
property located, in whole or in part, within an urban growth
boundary, the public entity with which the claim was filed shall
Enrolled House Bill 3540 (HB 3540-C) Page 15
send notice to the claimant within 90 days after the effective
date of this 2007 Act. The notice must:
(a) Explain that the claimant is entitled to seek relief under
section 9 of this 2007 Act;
(b) Identify the information that the claimant must file; and
(c) Provide a form for the claimant's use.
(3) Within 120 days after the date the public entity mails
notice under subsection (2) of this section, a claimant must
notify the public entity if the claimant intends to continue the
claim and must file the information required in the notice. If
the claimant fails to file the notice and required information
with the public entity within 120 days after the date the public
entity mails the notice, the claimant is not entitled to relief
under section 9 of this 2007 Act.
(4) A public entity that receives a notice from a claimant
under subsection (3) of this section shall review the claim, the
record on the claim, the notice received from the claimant and
the information required under subsection (3) of this section to
determine whether the claim demonstrates that the requirements of
section 9 of this 2007 Act are satisfied. The public entity shall
complete a tentative review no later than 120 days after receipt
of the notice from the claimant and shall provide written notice
to the claimant, the department and any other person entitled to
notice of the tentative determination as to whether the claimant
qualifies for relief under section 9 of this 2007 Act and, if so,
the specific number of single-family dwellings that the public
entity proposes to authorize. The notice must state that the
recipient has 15 days to submit evidence or arguments in response
to the tentative determination, after which the public entity
shall make a final determination. A public entity shall make the
final determination under this subsection within 180 days after
receipt of the notice from the claimant.
(5) If a claimant filed a claim that is subject to this section
after December 4, 2006, the claim must have included a copy of a
final land use decision by the city or county with land use
jurisdiction over the property that denied an application by the
claimant for the residential use described in the claim. If the
claim was filed after December 4, 2006, and did not include a
final land use decision denying the residential use described in
the claim, the claimant is not entitled to relief under section 9
of this 2007 Act. + }
{ +
(Development Standards; Transferability) + }
SECTION 11. { + (1) A subdivision or partition of property, or
the establishment of a dwelling on property, authorized under
sections 5 to 11 of this 2007 Act must comply with all applicable
standards governing the siting or development of the dwelling,
lot or parcel including, but not limited to, the location,
design, construction or size of the dwelling, lot or parcel.
However, the standards must not be applied in a manner that has
the effect of prohibiting the establishment of the dwelling, lot
or parcel authorized under sections 5 to 11 of this 2007 Act
unless the standards are reasonably necessary to avoid or abate a
nuisance, to protect public health or safety or to carry out
federal law.
(2) Before beginning construction of any dwelling authorized
under section 6 or 7 of this 2007 Act, the owner must comply with
the requirements of ORS 215.293 if the property is in an
Enrolled House Bill 3540 (HB 3540-C) Page 16
exclusive farm use zone, a forest zone or a mixed farm and forest
zone.
(3)(a) A city or county may approve the creation of a lot or
parcel to contain a dwelling authorized under sections 5 to 11 of
this 2007 Act. However, a new lot or parcel located in an
exclusive farm use zone, a forest zone or a mixed farm and forest
zone may not exceed:
(A) Two acres if the lot or parcel is located on high-value
farmland, on high-value forestland or on land within a ground
water restricted area; or
(B) Five acres if the lot or parcel is not located on
high-value farmland, on high-value forestland or on land within a
ground water restricted area.
(b) If the property is in an exclusive farm use zone, a forest
zone or a mixed farm and forest zone, the new lots or parcels
created must be clustered so as to maximize suitability of the
remnant lot or parcel for farm or forest use.
(4) If an owner is authorized to subdivide or partition more
than one property, or to establish dwellings on more than one
property, under sections 5 to 11 of this 2007 Act and the
properties are in an exclusive farm use zone, a forest zone or a
mixed farm and forest zone, the owner may cluster some or all of
the dwellings, lots or parcels on one of the properties if that
property is less suitable than the other properties for farm or
forest use. If one of the properties is zoned for residential
use, the owner may cluster some or all of the dwellings, lots or
parcels that would have been located in an exclusive farm use
zone, a forest zone or a mixed farm and forest zone on the
property zoned for residential use.
(5) An owner is not eligible for more than 20 home site
approvals under sections 5 to 11 of this 2007 Act, regardless of
how many properties that person owns or how many claims that
person has filed.
(6) An authorization to partition or subdivide the property, or
to establish dwellings on the property, granted under section 6,
7 or 9 of this 2007 Act runs with the property and may be either
transferred with the property or encumbered by another person
without affecting the authorization. There is no time limit on
when an authorization granted under section 6, 7 or 9 of this
2007 Act must be carried out, except that once the owner who
obtained the authorization conveys the property to a person other
than the owner's spouse or the trustee of a revocable trust in
which the owner is the settlor, the subsequent owner of the
property must create the lots or parcels and establish the
dwellings authorized by a waiver under section 6, 7 or 9 of this
2007 Act within 10 years of the conveyance. In addition:
(a) A lot or parcel lawfully created based on an authorization
under section 6, 7 or 9 of this 2007 Act remains a discrete lot
or parcel, unless the lot or parcel lines are vacated or the lot
or parcel is further divided, as provided by law; and
(b) A dwelling or other residential use of the property based
on an authorization under section 6, 7 or 9 of this 2007 Act is a
permitted use and may be established or continued by the claimant
or a subsequent owner, except that once the claimant conveys the
property to a person other than the claimant's spouse or the
trustee of a revocable trust in which the claimant is the
settlor, the subsequent owner must establish the dwellings or
other residential use authorized under section 6, 7 or 9 of this
2007 Act within 10 years of the conveyance.
Enrolled House Bill 3540 (HB 3540-C) Page 17
(7) When relief has been claimed under sections 5 to 11 of this
2007 Act:
(a) Additional relief is not due; and
(b) An additional claim may not be filed, compensation is not
due and a waiver may not be issued with regard to the property
under sections 5 to 22 of this 2007 Act or ORS 197.352 as in
effect immediately before the effective date of this 2007 Act,
except with respect to a land use regulation enacted after
January 1, 2007.
(8) A person that is eligible to be a holder as defined in ORS
271.715 may acquire the rights to carry out a use of land
authorized under sections 5 to 11 of this 2007 Act from a willing
seller in the manner provided by ORS 271.715 to 271.795. Metro,
cities and counties may enter into cooperative agreements under
ORS chapter 195 to establish a system for the purchase and sale
of severable development interests as described in ORS 94.531. A
system established under this subsection may provide for the
transfer of severable development interests between the
jurisdictions of the public entities that are parties to the
agreement for the purpose of allowing development to occur in a
location that is different from the location in which the
development interest arises.
(9) If a claimant is an individual, the entitlement to
prosecute the claim under section 6, 7 or 9 of this 2007 Act and
an authorization to use the property provided by a waiver under
section 6, 7 or 9 of this 2007 Act:
(a) Is not affected by the death of the claimant if the death
occurs on or after the effective date of this 2007 Act; and
(b) Passes to the person that acquires the property by devise
or by operation of law. + }
{ +
BALLOT MEASURE 37 CLAIMS MADE + }
{ +
AFTER THE DATE OF ADJOURNMENT SINE DIE + }
{ +
OF THE 2007 REGULAR SESSION OF THE + }
{ +
SEVENTY-FOURTH LEGISLATIVE ASSEMBLY + }
{ +
(Generally) + }
SECTION 12. { + (1) A person may file a claim for just
compensation under sections 12 to 14 of this 2007 Act and ORS
197.352 after the date of adjournment sine die of the 2007
regular session of the Seventy-fourth Legislative Assembly if:
(a) The person is an owner of the property and all owners of
the property have consented in writing to the filing of the
claim;
(b) The person's desired use of the property is a residential
use or a farming or forest practice;
(c) The person's desired use of the property is restricted by
one or more land use regulations enacted after January 1, 2007;
and
(d) The enactment of one or more land use regulations after
January 1, 2007, other than land use regulations described in ORS
197.352 (3), has reduced the fair market value of the property.
(2) For purposes of subsection (1) of this section, the
reduction in the fair market value of the property caused by the
enactment of one or more land use regulations that are the basis
Enrolled House Bill 3540 (HB 3540-C) Page 18
for the claim is equal to the decrease, 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. If the claim is
based on the enactment of more than one land use regulation
enacted on different dates, the reduction in the fair market
value of the property caused by each regulation shall be
determined separately and the values added together to calculate
the total reduction in fair market value. Interest shall be
computed under this subsection using 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. A
claimant must provide an appraisal showing the fair market value
of the property one year before the enactment of the 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:
(a) Be prepared by a person certified under ORS chapter 674 or
a person registered under ORS chapter 308;
(b) Comply with the Uniform Standards of Professional Appraisal
Practice, as authorized by the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989; and
(c) Expressly determine the highest and best use of the
property at the time the land use regulation was enacted.
(3) Relief may not be granted under this section if the highest
and best use of the property at the time the land use regulation
was enacted was not the use that was restricted by the land use
regulation.
(4) If the claimant establishes that the requirements of
subsection (1) of this section are satisfied and the land use
regulation was enacted by Metro, a city or a county, the public
entity must either:
(a) Compensate the claimant for the reduction in the fair
market value of the property; or
(b) Authorize the claimant to use the property without
application of the land use regulation to the extent necessary to
offset the reduction in the fair market value of the property.
(5) If the claimant establishes that the requirements of
subsection (1) of this section are satisfied and the land use
regulation was enacted by state government, as defined in ORS
174.111, the state agency that is responsible for administering
the statute, statewide land use planning goal or rule, or the
Oregon Department of Administrative Services if there is no state
agency responsible for administering the statute, goal or rule,
must:
(a) Compensate the claimant for the reduction in the fair
market value of the property; or
(b) Authorize the claimant to use the property without
application of the land use regulation to the extent necessary to
offset the reduction in the fair market value of the property.
(6) A use authorized by this section has the legal status of a
lawful nonconforming use in the same manner as provided by ORS
215.130. The claimant may carry out a use authorized by a public
entity under this section except that a public entity may waive
only land use regulations that were enacted by the public entity.
When a use authorized by this section is lawfully established,
Enrolled House Bill 3540 (HB 3540-C) Page 19
the use may be continued lawfully in the same manner as provided
by ORS 215.130. + }
{ +
(Procedures for Actions on New Claims) + }
SECTION 13. { + (1) A person filing a claim under section 12
of this 2007 Act shall file the claim in the manner provided by
this section. If the property for which the claim is filed has
more than one owner, the claim must be signed by all the owners
or the claim must include a signed statement of consent from each
owner. Only one claim for each property may be filed for each
land use regulation.
(2) A claim filed under section 12 of this 2007 Act must be
filed with the public entity that enacted the land use regulation
that is the basis for the claim.
(3) Metro, cities, counties and the Department of Land
Conservation and Development may impose a fee for the review of a
claim filed under section 12 of this 2007 Act in an amount not to
exceed the actual and reasonable cost of reviewing the claim.
(4) A person must file a claim under section 12 of this 2007
Act within five years after the date the land use regulation was
enacted.
(5) A public entity that receives a claim filed under section
12 of this 2007 Act must issue a final determination on the claim
within 180 days after the date the claim is complete, as
described in subsection (9) of this section.
(6) If a claim under section 12 of this 2007 Act is filed with
state government, as defined in ORS 174.111, the claim must be
filed with the department. If the claim is filed with Metro, a
city or a county, the claim must be filed with the chief
administrative office of the public entity, or with an individual
designated by ordinance, resolution or order of the public
entity.
(7) A claim filed under section 12 of this 2007 Act must be in
writing and must include:
(a) The name and address of each owner;
(b) The address, if any, and tax lot number, township, range
and section of the property;
(c) 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;
(d) A citation to the land use regulation that the claimant
believes is restricting the claimant's desired use of the
property that is adequate to allow the public entity to identify
the specific land use regulation that is the basis for the claim;
(e) A description of the specific use of the property that the
claimant desires to carry out but cannot because of the land use
regulation; and
(f) An appraisal of the property that complies with section 12
(2) of this 2007 Act.
(8) A claim filed under section 12 of this 2007 Act must
include the fee, if any, imposed by the public entity with which
the claim is filed pursuant to subsection (3) of this section.
(9) The public entity shall review a claim filed under section
12 of this 2007 Act to determine whether the claim complies with
the requirements of sections 12 to 14 of this 2007 Act. If the
claim is incomplete, the public entity shall notify the claimant
Enrolled House Bill 3540 (HB 3540-C) Page 20
in writing of the information or fee that is missing within 60
days after receiving the claim and allow the claimant to submit
the missing information or fee. The claim is complete when the
public entity receives any fee required by subsection (8) of this
section and:
(a) The missing information;
(b) Part of the missing information and written notice from the
claimant that the remainder of the missing information will not
be provided; or
(c) Written notice from the claimant that none of the missing
information will be provided.
(10) If a public entity does not notify a claimant within 60
days after a claim is filed under section 12 of this 2007 Act
that information or the fee is missing from the claim, the claim
is deemed complete when filed.
(11) A claim filed under section 12 of this 2007 Act is deemed
withdrawn if the public entity gives notice to the claimant under
subsection (9) of this section and the claimant does not comply
with the requirements of subsection (9) of this section. + }
SECTION 14. { + (1) A public entity that receives a complete
claim as described in section 13 of this 2007 Act shall provide
notice of the claim at least 30 days before a public hearing on
the claim or, if there will not be a public hearing, at least 30
days before the deadline for submission of written comments, to:
(a) All owners identified in the claim;
(b) All persons described in ORS 197.763 (2);
(c) The Department of Land Conservation and Development, unless
the claim was filed with the department;
(d) Metro, if the property is located within the urban growth
boundary of Metro;
(e) The county in which the property is located, unless the
claim was filed with the county; and
(f) The city, if the property is located within the urban
growth boundary or adopted urban planning area of the city.
(2) The notice required under subsection (1) of this section
must describe the claim and state:
(a) Whether a public hearing will be held on the claim, the
date, time and location of the hearing, if any, and the final
date for submission of written evidence and arguments relating to
the claim;
(b) That judicial review of the final determination of a public
entity on the claim is limited to the written evidence and
arguments submitted to the public entity; and
(c) That judicial review is available only for issues that are
raised with sufficient specificity to afford the public entity an
opportunity to respond.
(3) Except as provided in subsection (4) of this section,
written evidence and arguments in proceedings on the claim must
be submitted to the public entity not later than:
(a) The close of the final public hearing on the claim; or
(b) If a public hearing is not held, the date that is specified
by the public entity in the notice required under subsection (1)
of this section.
(4) The claimant may request additional time to submit written
evidence and arguments in response to testimony or submittals.
The request must be made before the close of testimony or the
deadline for submission of written evidence and arguments.
(5) A public entity shall make the record on review of a claim,
including any staff reports, available to the public before the
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close of the record as described in subsections (3) and (4) of
this section.
(6) A public entity shall mail a copy of the final
determination to the claimant and to any person who submitted
written evidence or arguments before the close of the record. The
public entity shall forward to the county, and the county shall
record, a memorandum of the final determination in the deed
records of the county in which the property is located. + }
SECTION 15. { + In addition to any other notice required by
law, a county must give notice of a Measure 37 permit for
property located entirely outside an urban growth boundary to:
(1) The county assessor for the county in which the property is
located;
(2) A district or municipality that supplies water for
domestic, municipal or irrigation uses and has a place of use or
well located within one-half mile of the property; and
(3) The Department of Land Conservation and Development, the
State Department of Agriculture, the Water Resources Department
and the State Forestry Department. + }
{ +
JUDICIAL REVIEW + }
SECTION 16. { + (1) A person that is adversely affected by a
final determination of a public entity under sections 5 to 11 or
12 to 14 of this 2007 Act may obtain judicial review of that
determination under ORS 34.010 to 34.100, if the determination is
made by Metro, a city or a county, or under ORS 183.484, if the
determination is one of a state agency. Proceedings for review of
a state agency determination under sections 5 to 11 or 12 to 14
of this 2007 Act must be commenced in the county in which the
affected property is located. Upon motion of any party to the
proceedings, the proceedings may be transferred to any other
county with jurisdiction under ORS 183.484 in the manner provided
by law for change of venue. A determination by a public entity
under sections 5 to 11 or 12 to 14 of this 2007 Act is not a land
use decision.
(2) A person is adversely affected under subsection (1) of this
section if the person:
(a) Is an owner of the property that is the subject of the
final determination; or
(b) Is a person who timely submitted written evidence,
arguments or comments to a public entity concerning the
determination.
(3) Notwithstanding subsection (1) of this section, judicial
review of a final determination under sections 5 to 11 or 12 to
14 of this 2007 Act or ORS 197.352 is:
(a) Limited to the evidence in the record of the public entity
at the time of its final determination.
(b) Available only for issues that are raised before the public
entity with sufficient specificity to afford the public entity an
opportunity to respond. + }
{ +
OMBUDSMAN + }
SECTION 17. { + (1) The Governor shall appoint an individual
to serve, at the pleasure of the Governor, as the Compensation
and Conservation Ombudsman.
Enrolled House Bill 3540 (HB 3540-C) Page 22
(2) The ombudsman must be an individual of recognized judgment,
objectivity and integrity who is qualified by training and
experience to:
(a) Analyze problems of land use planning, real property law
and real property valuation; and
(b) Facilitate resolution of complex disputes. + }
SECTION 18. { + (1) For the purpose of helping to ensure that
a claim is complete, as described in section 13 of this 2007 Act,
the Compensation and Conservation Ombudsman may review a proposed
claim if the review is requested by a claimant that intends to
file a claim under sections 12 to 14 of this 2007 Act and ORS
197.352.
(2) At the request of the claimant or the public entity
reviewing a claim, the ombudsman may facilitate resolution of
issues involving a claim under sections 5 to 22 of this 2007
Act. + }
{ +
MISCELLANEOUS + }
SECTION 19. { + (1) If an owner submits an application for a
comprehensive plan or zoning amendment, or submits an application
for an amendment to the Metro urban growth boundary, and Metro, a
city or a county approves the amendment, the owner is not
entitled to relief under sections 5 to 22 of this 2007 Act with
respect to a land use regulation enacted before the date the
application was filed.
(2) If an owner files a petition to initiate annexation to a
city and the city or boundary commission approves the petition,
the owner is not entitled to relief under sections 5 to 22 of
this 2007 Act with respect to a land use regulation enacted
before the date the petition was filed. + }
SECTION 20. { + An appraiser certified under ORS 674.310 or a
person registered under ORS chapter 308 may carry out the
appraisals required by sections 5 to 22 of this 2007 Act. The
Department of Land Conservation and Development is authorized to
retain persons to review the appraisals. + }
SECTION 21. { + (1) Except as provided in this section, a
claimant's acquisition date is 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. 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.
(2) 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 the relief provided
under sections 5 to 22 of this 2007 Act by using the procedure
provided in ORS 105.623 to 105.649.
(3) 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.
(4) 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. + }
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SECTION 21a. { + For the purposes of sections 5 to 22 of this
2007 Act, a document is filed on the date the document is
received by the public entity. + }
SECTION 21b. { + For the purposes of sections 5 to 22 of this
2007 Act, the fair market value of property is 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 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. + }
SECTION 21c. { + If any part of sections 5 to 22 of this 2007
Act is held to be unconstitutional or otherwise invalid, all
remaining parts of sections 5 to 22 of this 2007 Act shall not be
affected by the holding and shall remain in full force and
effect. + }
SECTION 22. { + (1) The Compensation and Conservation Fund is
established in the State Treasury, separate and distinct from the
General Fund. Interest earned on moneys in the Compensation and
Conservation Fund shall be credited to the fund. The fund
consists of moneys received by the Department of Land
Conservation and Development under sections 5 to 22 of this 2007
Act and other moneys available to the department for the purpose
described in subsection (2) of this section.
(2) Moneys in the fund are continuously appropriated to the
department for the purpose of paying expenses incurred to review
claims under sections 5 to 22 of this 2007 Act and for the
purpose of paying the expenses of the Compensation and
Conservation Ombudsman appointed under section 17 of this 2007
Act. + }
{ +
CONFORMING AMENDMENTS + }
SECTION 23. ORS 93.040 is amended to read:
93.040. (1) The following statement shall be included in the
body of an instrument transferring or contracting to transfer fee
title to real property except for owner's sale agreements or
earnest money receipts, or both, as provided in subsection (2) of
this section: 'BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE
PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON'S
RIGHTS, IF ANY, UNDER ORS 197.352 SECTIONS 2, 3 AND 5 TO 22 OF
THIS 2007 ACT. THIS INSTRUMENT DOES NOT ALLOW USE OF THE PROPERTY
DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE
LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS
INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD
CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO
VERIFY APPROVED USES, TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST
FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930 AND TO
INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY,
UNDER ORS 197.352 SECTIONS 2, 3 AND 5 TO 22 OF THIS 2007 ACT.
'
(2) In all owner's sale agreements and earnest money receipts,
there shall be included in the body of the instrument the
following statement: 'THE PROPERTY DESCRIBED IN THIS INSTRUMENT
MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING
Enrolled House Bill 3540 (HB 3540-C) Page 24
STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE LAWS AND
REGULATIONS THAT, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE
CONSTRUCTION OR SITING OF A RESIDENCE AND THAT LIMIT LAWSUITS
AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930 IN
ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE
PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON'S
RIGHTS, IF ANY, UNDER ORS 197.352 SECTIONS 2, 3 AND 5 TO 22 OF
THIS 2007 ACT. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE
PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE
APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED
USES, THE EXISTENCE OF FIRE PROTECTION FOR STRUCTURES AND THE
RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 197.352
SECTIONS 2, 3 AND 5 TO 22 OF THIS 2007 ACT. '
(3) In all owners' sale agreements and earnest money receipts
subject to ORS 358.505, there shall be included in the body of
the instrument or by addendum the following statement: 'THE
PROPERTY DESCRIBED IN THIS INSTRUMENT IS SUBJECT TO SPECIAL
ASSESSMENT UNDER ORS 358.505. ORS 358.515 REQUIRES NOTIFICATION
TO THE STATE HISTORIC PRESERVATION OFFICER OF SALE OR TRANSFER OF
THIS PROPERTY. '
(4) An action may not be maintained against the county
recording officer for recording an instrument that does not
contain the statement required in subsection (1) or (2) of this
section.
(5) An action may not be maintained against any person for
failure to include in the instrument the statement required in
subsection (1) or (2) of this section, or for recording an
instrument that does not contain the statement required in
subsection (1) or (2) of this section, unless the person
acquiring or agreeing to acquire fee title to the real property
would not have executed or accepted the instrument but for the
absence in the instrument of the statement required by subsection
(1) or (2) of this section. An action may not be maintained by
the person acquiring or agreeing to acquire fee title to the real
property against any person other than the person transferring or
contracting to transfer fee title to the real property.
SECTION 24. { + The unit captions used in this 2007 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express a legislative
intent in the enactment of this 2007 Act. + }
SECTION 25. { + This 2007 Act shall be submitted to the people
for their approval or rejection at a special election held
throughout this state as provided in chapter ___, Oregon Laws
2007 (Enrolled House Bill 2083). + }
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Enrolled House Bill 3540 (HB 3540-C) Page 25
Passed by House May 4, 2007
Repassed by House June 6, 2007
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 5, 2007
...........................................................
President of Senate
Enrolled House Bill 3540 (HB 3540-C) Page 26
Referred to People
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled House Bill 3540 (HB 3540-C) Page 27