75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
 
HA to HB 3090
 
LC 3127/HB 3090-5
 
                       HOUSE AMENDMENTS TO
                         HOUSE BILL 3090
 
              By COMMITTEE ON ENVIRONMENT AND WATER
 
                              May 1
 
  On page 1 of the printed bill, line 2, delete '93.270' and
insert '93.272 and 105.880'.
  Delete lines 4 through 30 and delete page 2 and insert:
  '  { +  SECTION 1. + } ORS 105.880 is amended to read:
  ' 105.880.   { - (1) No person conveying or contracting to
convey fee title to real property shall include in an instrument
for such purpose a provision prohibiting the use of solar energy
systems by any person on that property. - }
  '  { - (2) Any provision executed in violation of subsection
(1) of this section after October 3, 1979, is void and
unenforceable. - }
  '  { - (3) For the purposes of this section, 'solar energy
system' means any device, structure, mechanism or series of
mechanisms which uses solar radiation as a source for heating,
cooling or electrical energy. - }
  '  { +  (1) As used in this section, 'solar energy system'
means a device, structure, mechanism or series of mechanisms that
uses solar radiation as a source for heating, cooling or
electrical energy, including a device, structure or mechanism for
radiant drying of clothing in open air.
  ' (2) A person may not include in an instrument conveying or
contracting to convey fee title to real property a provision:
  ' (a) Prohibiting the use of a solar energy system on the
property; or
  ' (b) Restricting the orientation or use of a solar energy
system on the property in a manner that impairs the effective
operation of the solar energy system.
  ' (3) A provision in an instrument is void and unenforceable if
the provision violates:
  ' (a) Subsection (2)(a) of this section and the instrument was
executed after October 3, 1979.
  ' (b) Subsection (2)(b) of this section and the instrument was
executed after the effective date of this 2009 Act.
  ' (4) An owner of record of real property subject to an
instrument containing a provision described in this section may
file a petition to remove the provision in the manner provided in
ORS 93.272 for removal of a similar provision from an instrument
conveying or contracting to convey fee title to real
property. + }
  '  { +  SECTION 2. + }  { + Section 3 of this 2009 Act is added
to and made a part of ORS 94.550 to 94.783. + }
  '  { +  SECTION 3. + }  { + (1) A provision in a declaration or
bylaws of a planned community is void and unenforceable as a
violation of the public policy to protect the public health,
safety and welfare if the provision:
  ' (a) Prohibits the use of a solar energy system, as defined in
ORS 105.880, on a lot; or
  ' (b) Restricts the orientation or use of a solar energy system
on a lot in a manner that impairs the effective operation of the
solar energy system.
  ' (2) An owner of record of a lot that is subject to an
instrument containing a provision described in this section may
file a petition to remove the provision in the manner provided in
ORS 93.272 for removal of a similar provision from an instrument
conveying or contracting to convey fee title to real property.
  ' (3) This section does not:
  ' (a) Authorize an owner of record to install a solar energy
system in or on common property or property maintained by the
homeowners association.
  ' (b) Prohibit inclusion in a declaration, bylaws, rules or
regulations of a provision that establishes reasonable
restrictions on size, appearance or location of a solar energy
system without impairing effective operation of the solar energy
system. + }
  '  { +  SECTION 4. + }  { + Section 5 of this 2009 Act is added
to and made a part of ORS chapter 100. + }
  '  { +  SECTION 5. + }  { + (1) A provision in a declaration or
bylaws of a condominium is void and unenforceable as a violation
of the public policy to protect the public health, safety and
welfare if the provision:
  ' (a) Prohibits the use of a solar energy system in or on a
unit or limited common elements reserved to the unit; or
  ' (b) Restricts the orientation or use of a solar energy system
in or on a unit or limited common elements reserved to the unit
in a manner that impairs the effective operation of the solar
energy system.
  ' (2) A unit owner of a condominium unit that is subject to an
instrument containing a provision described in this section may
file a petition to remove the provision in the manner provided in
ORS 93.272 for removal of a similar provision from an instrument
conveying or contracting to convey fee title to real property.
  ' (3) This section does not:
  ' (a) Authorize a unit owner to install a solar energy system
in or on a general common element or property maintained by the
association of unit owners.
  ' (b) Prohibit inclusion in a declaration, bylaws, rules or
regulations of a provision that establishes reasonable
restrictions on size, appearance or location of a solar energy
system without impairing effective operation of the solar energy
system. + }
  '  { +  SECTION 6. + } ORS 93.272 is amended to read:
  ' 93.272. (1) Any owner of record of real property that is
subject to an instrument conveying or contracting to convey fee
title to the property that contains a provision that is in
violation of ORS 93.270  { + or 105.880 or section 3 or 5 of this
2009 Act + } may file a petition to remove that provision from
the title to the property. The petition   { - shall - }
 { + must + } be filed in the circuit court for the county in
which the property is located.   { - No fee shall be charged - }
 { + The circuit court may not charge a fee + } for the filing of
the petition. The petition   { - shall - }   { + must + }
contain:
  ' (a) The name and mailing address of the person filing the
petition;
  ' (b) The name and mailing address of all owners of record of
the property;
  ' (c) The legal description of the property subject to the
provision in violation of ORS 93.270 { +  or 105.880 or section 3
or 5 of this 2009 Act + }; and
  ' (d) A clear reference to the provision claimed to be in
violation of ORS 93.270 { +  or 105.880 or section 3 or 5 of this
2009 Act + }.
  ' (2)  { + The petitioner shall serve + } notice and a copy of
the petition   { - shall be served - }  on all owners of record
in any manner provided for in ORCP 7. The notice   { - shall - }
 { + must + } inform the owners of record that:
  ' (a) The petition seeks the removal of a provision that is in
violation of ORS 93.270  { + or 105.880 or section 3 or 5 of this
2009 Act + } from the title to the property;
  ' (b) The person served may request a hearing within 10 days
after service of the petition; and
  ' (c) The court   { - is authorized to - }   { + may + } enter
a default judgment removing the provision if   { - no - }
 { + the owners of record do not request a + } hearing   { - is
requested by the owners of record - } .
  ' (3) The petitioner shall file with the court proof of service
in the manner provided in ORCP 7 F. If   { - no - }   { + a + }
request for hearing is  { + not + } made by any person served
within 10 days after service on that person, the court shall
enter a judgment removing the provision from the title to the
property if the court determines that the provision is in
violation of ORS 93.270  { + or 105.880 or section 3 or 5 of this
2009 Act + }.
  ' (4) If a hearing is requested by any person served under
subsection (2) of this section, the clerk of the court shall
schedule a hearing within 20 days after the filing of the request
for a hearing. The clerk of the court shall mail notification of
the hearing date to the petitioner and to all owners of record
listed in the petition.
  ' (5) At any hearing under the provisions of this section, the
sole issue   { - that shall - }   { + to + } be decided by the
court is whether the provision that is the subject of the
petition is in violation of ORS 93.270  { + or 105.880 or section
3 or 5 of this 2009 Act + }. The  { +  court shall try the + }
matter   { - shall be tried to the court sitting - } without { +
a + } jury. If the court finds that the provision is not in
violation of ORS 93.270  { + or 105.880 or section 3 or 5 of this
2009 Act + }, the court shall dismiss the petition. If the court
finds that the provision is in violation of ORS 93.270  { + or
105.880 or section 3 or 5 of this 2009 Act + }, the court shall
enter a judgment removing the provision from the title to the
property.
  ' (6) If a court finds only part of a provision to be in
violation of ORS 93.270  { + or 105.880 or section 3 or 5 of this
2009 Act + } under this section, the court shall enter a judgment
removing only that part of the provision that is in violation.
  ' (7) For the purposes of this section  { - , - }  { + :
  ' (a) 'Instrument conveying or contracting to convey fee title'
includes a declaration and bylaws of a planned community
established pursuant to ORS 94.550 to 94.783 or by contract and a
declaration and bylaws of a condominium established pursuant to
ORS chapter 100.
  ' (b)  + } ' Owner of record' means a person having any legal
or equitable interest in property, including, but not limited to,
a purchaser, lienholder or holder of any security interest in
 { - such - }  { +  the + } property whose interest is recorded
in the public records provided for by Oregon statutes where the
owner's interest must be recorded to perfect a lien or security
interest or provide constructive notice of the owner's
interest.'.
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