74th OREGON LEGISLATIVE ASSEMBLY--2007 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 3823
House Bill 3540
Sponsored by Representative MACPHERSON, Senator PROZANSKI
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.
Conforms Ballot Measure 37 (2004) to legislative form and
style.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to compensation for loss of value of private real
property resulting from land use regulation; creating new
provisions; amending ORS 197.352; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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 the use of private real property
or { + of + } any interest therein and has the effect of
reducing the fair market value of the property { - , - } or
{ + of + } any interest therein, then the owner of the property
shall be paid just compensation.
(2) Just compensation { - shall be - } { + is + } equal to
the reduction in the fair market value of the affected property
interest resulting from enactment or enforcement of the land use
regulation as of the date the owner makes { + a + } written
demand for compensation under this section.
(3) Subsection (1) of this section { - shall - }
{ + does + } not apply 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;
{ - (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) - } { + (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)(a) Subsection (3)(a) of this section shall be
construed narrowly in favor of a finding of compensation under
this section.
(b) Nothing in subsection (3)(d) of this section is intended to
affect or alter rights provided by the Oregon or United States
Constitution. + }
{ - (4) - } { + (5) + } Just compensation under subsection
(1) of this section { - shall be - } { + is + } 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 { + a + } written demand for compensation under
this section to the public entity enacting or enforcing the land
use regulation.
{ - (5) - } { + (6) + } For claims arising from land use
regulations enacted prior to December 2, 2004, { + the owner of
the property shall make a + } written demand for compensation
under { - subsection (4) shall be made - } { + subsection (5)
of this section + } within two years of December 2, 2004, or the
date the public entity applies the land use regulation as an
approval { - criteria - } { + criterion + } 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, { + the owner of the property shall make a + } written
demand for compensation under { - subsection (4) shall be
made - } { + subsection (5) of this section + } 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 - } { +
criterion + }, whichever is later.
{ - (6) - } { + (7) + } 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 { + of + } any interest therein { - ,
shall have - } { + has + } a cause of action for compensation
under this section in the circuit court { + for the county + }
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.
{ - (7) - } { + (8) + } A metropolitan service district,
city, { - or - } county { - , - } or state agency 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) - } { + (7) + } 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) - } { + (7) + } of this section.
{ - (8) - } { + (9) + } Notwithstanding any other state
statute or the availability of funds under subsection
{ - (10) - } { + (11) + } of this section, in lieu of payment
of just compensation under this section, the governing body
responsible for enacting 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.
{ - (9) - } { + (10) + } A decision by a governing body
under this section
{ - shall not be considered - } { + is not + } a land use
decision as defined in ORS 197.015 { - (11) - } .
{ - (10) - } { + (11) + }Claims made under this section
{ - shall - } { + must + } be paid from funds, if any,
specifically allocated by the
{ - legislature - } { + Legislative Assembly + }, 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 - } { + may + } use available funds to pay claims
or { - to - } { + may + } modify, remove { - , - } or not
apply a land use regulation or land use regulations pursuant to
subsection { - (6) - } { + (9) + } 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 - } { + may + } use
the property as permitted at the time the owner acquired the
property.
{ - (11) - } { + (12) + } { - Definitions - for purposes
of - } { + As used in + } this section:
{ - (A) - } { + (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.
{ - (B) - } { + (b) + } 'Land use regulation' shall
include:
{ - (i) - } { + (A) + } Any statute regulating the use of
land or { + of + } any interest therein;
{ - (ii) - } { + (B) + } Administrative rules and goals of
the Land Conservation and Development Commission;
{ - (iii) - } { + (C) + } Local government comprehensive
plans, zoning ordinances, land division ordinances { - , - }
and transportation ordinances;
{ - (iv) - } { + (D) + } Metropolitan service district
regional framework plans, functional plans, planning goals and
objectives; and
{ - (v) - } { + (E) + } Statutes and administrative rules
regulating farming and forest practices.
{ - (C) - } { + (c) + } 'Owner' is the present owner of the
property { - , - } or { + of + } any interest therein.
{ - (D) - } { + (d) + } 'Public entity' shall include the
state, a metropolitan service district, a city { - , or - }
{ + and + } a county.
{ - (12) - } { + (13) + } The remedy created by this
section is in addition to any other remedy under the Oregon or
United States
{ - Constitutions - } { + Constitution + }, and is not
intended to modify or replace any other remedy.
{ - (13) - } { + (14) + } 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 - } { + continue + } in full force and effect.
SECTION 2. { + ORS 197.352 is added to and made a part of ORS
chapter 197. + }
SECTION 3. { + This 2007 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2007 Act takes effect on its
passage. + }
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