HomeMy WebLinkAbout2004-1130 Special Mtg Packet
Council Meeting Pkt.
BARBARA. CHRISTENSEN
CITY RECORDER
CITY OF
ASHLAND
Important: If you wis,h to speak, please fill out the Speaker Requestform located near the entrance to
the Council C:hambers. The chair will recognize you and inform you as to the amount of time allotted
to you. The time granted will be dependent to some extent on the nature of the item under discussion, the
number of people who wish to be heard, and the length of the agenda.
AGENDA FOR THE SPECIAL MEETING
ASHLAND CITY COUNCIL
November 30,2004
Civic Center Council Chambers, 1175 E. Main Street
6:00 p.m. Exe,cutive Session: To consider the negotiations for a real property transaction
pursuant to OIRS 192.660(2)(e).
6:30 p.m. Exe,cutive Session: To consult with counsel concerning legal rights and duties
regarding current litigation or litigation likely to be filed pursuant to ORS 192.660(2)(h).
7:00 p.m. Special Meeting
I. PLEDGE OF ALLEGIANCE:
II. ROLL GALL:
III. UNFINISHED BUSINESS:
1. Billings Ranchand Greenway Discussion.
IV. ORDINANCES. RESOLUTIONS AND CONTRACTS:
1. First and second readings by title only of "An Ordinance of the City of Ashland, Oregon,
Regarding Claims for Just Compensation Arising out of the Enactment of Ballot Measure 37,
Making Certain Provisions Therefore, and Declaring an Emergency."
V. ADJOURNMENT:
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this
meeting, pleasH contact the City Administrator's office at (541) 488-6002 (TTY phone number 1-800-735-
2900). Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to
ensure accessibility to the meeting (28 CFR 35.102-35. 104 ADA Title I).
COUNCTL" ivlEF:,!'INC,S ARI: BROAl)CAS"), LJVE ON CIIANNI], 9
VISIT TIlE C'II'\" (IF ASIJl,ANI)'S \VL:B SrrE AT \V\V\V.ASIII.ANl).OR.L!S
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CITY OF
ASHLAND
Memo
DATE:
TO:
FROM:
RE:
November 30, 2004
Honorable Mayor and City Council ~
John McLaughlin, Director of Community Development '\JY
Information - Use of Greenway for Golf Course - Billings Property
As the Council is aware, Mr. Mike Peru has approached Jackson County regarding the use of a
publicly owned parcel of the Bear Creek Greenway for the purposes of golf course development on
the Billings property. The Council has requested some background information regarding the
ecology of this specific parcel, as well as the need for this land for golf course purposes by the
developer.
Karen Smith, Coordinator of the Bear Creek Greenway for Jackson County, provided information
from the 1988 Plan that generally describes the area. While no site specific information is included
in the plan, in general, this area is described as a natural area with specific characteristics and
access making it most appropriate for passive recreation uses. Relevant sections from the 1988
plan are attached.
From walking the site, it is an area of varied vegetation, from large trees of multiple species, to a
wide variety of lovver level vegetation. Access to Bear Creek is possible from the Greenway trail.
There is an area of meadow-like vegetation within the site. Information provided on the walk with
Jackson County Planning Commissioners indicated a wide variety of birds and wildlife also inhabit
the area.
Mike Peru, the de!veloper for the Billings golf course, has indicated that the primary need for the
use of the Green\vay property is to create a golf course of adequate length to be certified as a
championship course. While they are only requesting to use approximately six acres of Greenway
property, they claim that this allows them to combine this with approximately eight acres of Billings
property located across Bear Creek to create a signature hole. The combination of the Greenway
and Billings propE~rties on the north side of Bear Creek allows for the creation of a golf hole that will
help meet the championship length desired.
Further, Mr. Peru stated that the inclusion of a golf course hole along a stream with creek
crossings is a desirable design feature for the course, and creates a better golfing experience.
However, he emphasized that the Greenway property is first and foremost necessary to
accommodate a Ghampionship length course and allowing them utilize the Billing's property on the
north side of Bear Creek. Due to the location of the ponds, the riparian and wetland areas, they
claim they are sOll1ewhat constrained in the areas to develop and the Greenway property allows
them the opportunity to create a course of championship length.
DEPARTMENT OF COMMUNIITY DEVELOPMENT
Planning Division
20 East Main Street
Ashland, Oregon 97520
www.ashland.or.us
Tel: 541-488-5305
Fax: 541-488-5311
TTY: 800-735-2900
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Bear
Creek
Greenway. Plan
ASHLAND to CENTRAL POINT
Prepared BV
Jackson County
Parks & Recreation Dept.
In A..ociatlon With
RVCOG Bear Creek
Greenwav CommiUee
Cover b),: Laura WBhinger
MaTch .1. 988
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Bear Creek Greenway Plan
TABLE 3-2
GREENWAY USE DESIGNATIONS SUMMAR]
USE DEGREE TY'PES OF . MANAGEMENT TYPICAL
CATBGOR.Y QL.JCCESS FACILITIBS PRIORITIES ACTIVITIES
NATURA~*
Wildlife Small number Only those Fish and Vie" wildlife.
Area. of ~fisi ~ors. facilities wildlife Researc.h.
Inf1requent to protect or habitat. Habit.at
v1.s:1ts. enhance the Native restorat1.on.
Little or no environment. vegetation. Passive
maintenance. Mitigation Water t.reatment.
bank areas. quality,.
Nature Small groups Facilities Unique OJ:' Nature
* Study of people. to protect special study.
, Areas* Infrequent & environment.. resources. Field trips
sho,rt vis! ts. Inforlftational Interpret for differen~
Ma3,ntain displays. to public. age groups.
na.t:ural Demonstration Locate near Conservation
prc~cesses . projects. park nodes. educ.ation.
ik-lASSIVE Moderate Trails,bridges. Bikepaths. Day use.
nU1IIber of Viewpoint.s.. 'Footpaths. Biking.
pec)ple. Signs, benches. Connections.. Hiking.
Frl!quent Barriers to Trail-relate.d Riding.
shc)rt visits. motor vehicles. facilities.. Nature study
Ha:Lnt.enance Access points Public Fishing.
at intervals. \lith restro01AS. education. Picnic.s.
ACTIVE
La:rge numbers
of people.
Int.ensive
activities.
Maintenance
as ongoing
function.
Motorized
vehicles.
Trails. Signs.
Playfields.
Playgrounds.
Parking lots.
Swimming.
Riding arenas.
Rest.rooDls.
Picnic tables.
Exercise court.
Master Plans.
Handicapped
access.
Security.
Coordination
with cities.
'Compatible
Circulation
and parking.
Day use and
night use ,,1th
lights and
security_
Sports.
Group picnics.
Community
events.
Camping.
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:~. Bear Creek. its tributaries, and streambanks are treated
':',<. natural ar'ea throughout the length of the greenway.
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NATIVE ,ARBORETUM can be established
around the existing stand of Pine and
Oak trees next to riparian ~r~a5.
ASHLAND :
on prese:
features
Greenway
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L:EG:END
S II
cale: I :
Project Boundary
Urban Growth ,Boundary
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Trail
Passive Recreation
Active Recreation
Natural Area
Mitigation Bonk Area
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Street ,to Ashland Creek Confluence
~~h1S segmen~ starts at the Oak Street ~ridge and the Talent
~IrrigatioD District (TID) Oak Street diversion at stream mile
:'22.2. The streambank has been disturbed by existing and past,
I~r developments. Both banks of Bear Creek below the Oak St.reet
~brid~e need tree planting ~o provide additional shading for the
~8tre8~ for a distance of about one-quarter mile~ Some private
'"} buildings and the City of Ashland' s se~age tre8t~ent plant
(should also have plBntings to i.prove visual screening. For
'>, these reason8 the area is included in the Bear Creek Greenway's
; ~.l~igation bunk" of ar~a8 needing habitat improvement.
~:..
"~I' {~:,' Within this 8.~gment there is a settling pond' developed for
> ~: removal of secli.ment from the waters of Ashland Creek during the
~, "inter of 198t)-87 "hile Reeder Reservoir was being sluiced. The
'~'" pond fulfillel! its purpose of keeping major sediment -deposition
.~~:' out of Bear C:teek. ~he cit.y is studying the possibility of the
~~') long-term use of the pond to reduce water qu'ality impacts on
.:':':;'f.. Bear Creek from future sluicing of Reeder Reservoir.
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4i;' The se~tling pond area is just upstream from th~ confluence of
~~ Ashland and Bear Creeks at a good bridge site, which is the
~;".. earliest 'pract.ical opportuni ty from the nor~h for a direct trai.l
~~ connection from the Bear Creek Greenvay into Ashland.
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,5-,- Ashland Pond Park Node
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The segment just described is comprised primarily of the part of
the Ashland Pond Park Node closest to Bear Creek. This park
node consists of 4S acres acquired by Jackson County ~ith Bear
Creek Greenway f~nds and reconveyed to the bity of Ashland. The
area is now the man~gement responsibility of the Ashland Parks
,ColQmission.
The City's focus for this area is on preserving and enhancing
the existing natural setting. A staging area off Ne.ada Street
with restrooms, picnic area and parking area will be developed.
An irrigation system to allow a variety of vegetation types to
be established is also needed. Ashland Pond viIi re.ain as it
is except ~o improve the walking t~8il. The area bet~een
Ashland Creek abd Bear Creek is appropriate for additional
wetlands habitat development -- this area includes the settling
pond that caught sediment from the sluicing of Reeder Reservoir
in early 1987.
,1
;~.Fi8ure 4-1 shows an additional area 'adjacent to this park node'
t that would also have a focus upon preserving and enhancing
t existing natural environments -- the native arboretum on the
~ right bank downstream from the confluence of Ashland and Bear
7' Creeks. The proposed arboretum would be a nature study area
% which could best be reached through the Ashland Pond Park Node.
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Ashla~d Creek ~o TID Canal Crossin2 on E8~le Mill Road
....
This segment begins where a new bridge crossing is neededo above
the (:onfluence of Ashland and Bear Creeks at approximately
stream mile 21.6. This reach of Bear Creek is 11ttl~
disturbed. Especially on'the right bank where chere 1s 8 fine
stand of native trees. The are~ has 8 beautiful stand of
pondero8a pine and ~hlte and black oaks in addition to the
common riparian trees (alder. ash, cottonwood, willows) tbat is
unique along Bear Creek. This area IS very well suited to be
the core of,sn arboretum and nature study area featuring native
trees and shrubs, as is proposed on Figure 4-1. Disturbed areas
at either end of the eX~Bting grove of pine and oak trees can be
rehabilitated with plantings of the few nati.e treeS (such 88
incel~se cedar and madrone) that are not already groving there,
so these places are iDcluded in the mitigation bank. The east
end is mostly open land in an. old pasture, while the ~e8t end
has ~aa old barn with the barnyard overgrown with poison hemlock.
:$
-
West of the old barn the trail would be located between the
riparian fringe of Bear Creek and Talent rrrig~tion Districtls
Lower Eastside canal. The precise route should be deter.ined
based on an engineering feasibility analysis of the costs of
placing the trail on the existing road near the canal or a new
route closer to the creek.
TID Canal to South ,Valley View Road Brid~e
If the bikepath follows the existing road along the TID canal,
then this segment will begin where the 1ID canal is bridged by
Eagle Mill, Road. As one of the areas where the trail would
depart from the stream bank by a cODsiderable distance, this is
also a segment that affords a good panorama of the landscape
beyond the Bear Creek c.orr,idoro.
Safety features ~ill be a major consideration as the trail
follows Eagle Mill Road. This location doe~, however, afford a
good view of the trees along the'stream and staying near the
road minimizes posible incompatibility problems with small farms
near the creek in the north Ashland area. The location where
Eagle Mill Road makes a 90 degree turn would make 8 good creek
viewpoint. There is a "standing rock" at this location and an
opportunity for ~n interpret1.e display on the geology and
hydrology of the course of Bear Creek.
4-4
Ecosystem Economics
ECOSYSTEM SERVICES VALUATION TO INFORM WATER AND NATURAL RESOURCE MANAGEMENT DECISIONS
by Daniel D. Heagerty and Gillian C. Ockner (David Evans and Associates, Inc.)
2004@ Envirotech Publications
reprinted with pennission for educational purposes
Water (as well as other natural resources) continues to face complex management issues which at times may appear
insurmountable. Arguably, many of the problems stem from our long history of trying to simplify very complex ecosystems to meet
short tenn or relatively narrow needs or wants. The water supply and water quality issues facing the western states are the result of
unsustainable use of natural resources that has dramatically changed the level of ecosystem service available in the region. Most,
perhaps all, of the western states have over-appropriated their rivers and streams--dramatically changing the hydrology, hydraulics, and
biological "capital" in those water bodies. Every western state faces substantial water quality issues, with thousands of river miles in
every state now determined to be "water quality limited" in one form or another. This is evidence that the natural system's ability to
maintain balance is impacted by our system alterations, overuse, waste, and pollution.
We are infonned of degrading environmental conditions daily. The Colorado, Columbia, Klamath, Rio Grande, San Joaquin, and
Willamette Rivers are typical of most of the western rivers embroiled in water crises. It is apparent that we have been liquidating our
natural capital to support our economy and lifestyles. Now we are paying for the consequences.
In other areas, the American Lung Association reports that air pollution for electricity production costs the nation $20 billion per
year in health care impacts (Renewable Northwest Project, Switch to Renewable Energy, 2003). The loss of 20 percent of trees in US
cities in the past 10 years contributes to environmental and health problems that have cost an estimated $234 billion as reported by
American Forests (Reuters, September 18, 2003). An estimated 75 percent of global fish stocks are now fished at or beyond their
sustainable limit (U.S. Water News, April 2003).
This trajectory of diminishing natural capital is increasing the value of ecosystem services. Just like traditional economic markets,
as goods grow scarce (water, productive soils, etc.), they become more costly to replace, and therefore more valuable to society.
Currently, we are experiencing a high rate of species loss. A conservative estimate of the loss rate is one species per hour or
10,000 times the rate of evolution of new species (Daily, et aI., Issues in Ecology, February 2001). The cost of species protection
continues to rise. The federal government spends millions of dollars every year on species protection and yet ineffective
implementation of the Endangered Species Act (ESA) has contributed to the extinction of at least 114 species since the law was passed
in 1973, according to a recent study by the Center for Biological Diversity. In order for the agencies to address the backlog of
designating critical habitat for listed species, a step in proper implementation, they would need approximately $153 million, but this
year's federal budget has only $17 million for the ESA program (Environmental News Service, www.keepmedia.com. April 22,
2004).
Climate change is projected to affect water supplies throughout the West, shifting the hydro graphs to less winter storage and lower
summer flows. These conditions will affect society not only through further constraining already over-appropriated supplies, but also
human health by affecting the quality of water, decreasing air quality (drier conditions), changing flood regimes, and increasing the risk
of infectious diseases. Coastal resources and economies will be faced with projected increases in sea level rise. (Physicians for Social
Responsibility, Degrees of Danger: Health Effects of Climate Change and Energy in Oregon, February 2002). The costs associated
with climate change effects have yet to be fully realized.
Valuing Ecosystem Services
The above mentioned examples emphasize the importance of answering this question: how do we account for the value of
ecosystem services in our policy and project decision-making to help conserve the resources we have left and most effectively prioritize
restoration?
Capturing the value of ecosystem services and applying it to cost-benefit analyses and policy debates is challenging. "Faced with
local situations, infonnecl decision-makers need to know where and by how much ecosystem services are degraded by the specific
impacts of development, other land uses, or pollution. This problem, the assessment and valuation of services at the margin, is at once
the most important and most difficult challenge for economists and ecologists." (Salzman, Conservation Biology, Pages 497-498,
Vol. 12, No.3, June 1998.) If we are to reshape the current trajectory, understanding and valuing ecosystem services in our decision-
making is imperative.
Ecosystems provide society with a range of natural conditions and functions collectively known as ecosystem services (Daily
1997, Brown 2001, Roodman 1998 (see below)). Ecosystem services represent the conditions or processes that sustain life. Based on
what we know today, we can account for more than 18 natural services in western watersheds. The cross section of a portion of a
typical watershed ecosystem provided below is a snapshot of some of the services that benefit society and which can be valued in
economic tenns. Some of the services provided by watershed ecosystems include: precipitation interception and storage; water
purification; biodiversity maintenance; air purification; thennal regulation; erosion control; soil creation; and nutrient cycling.
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These conditions or processes produce benefits that have economic utility or satisfy an economic want. We have traditionally
valued ecosystems based on the direct use of natural resources. In the case of direct use, translation of benefits into goods is explicit
(trees into lumber, water into crops, etc.) and the connection is accounted for by society (at least in part) through market trading.
However, the economic value of natural conditions or processes such as water purification, air purification, nutrient cycling, soil
stabilization and plant pollination, is often unclear because of the way we currently measure costs and benefits. The market value of
water in the Central Valley of California, or the Colorado River Basin, does not reflect the true costs of putting that water on desert
lands for alfalfa crops. Consider the "external costs" of that water when we factor in the costs to society of reduced river flows, which
include: affected fisheries; boating impacts; ESA listings; Clean Water Act constraints on cities and industries; aesthetics; property
devaluation; desertification (from groundwater level drops); thennaI alterations effecting energy consumption; power and infrastructure
costs to move the water around; and etc. Ecosystem economics analysis is a method to "map" and then value these connections -this
web of systems dynamics-that can bring better accounting for the many goods that are not traded directly in our traditional "markets."
Ecosystem economics requires modeling of the dynamics of the system being evaluated. For a basin plan it would include the
"mapping" of all the services and functions perfonning in that watershed. Where possible, quantities are generated and then value
placed on those quantities. Annual yield of water flows can be modeled, the value of the water detennined either linearly (Municipal &
Industry (M&I), irrigation, etc) or systems based (flow for aquatic habitats/river morphology, fish production, riparian resources,
groundwater recharge/discharge, hypolimnic (lake/reservoir) cooling, recreation, aesthetics, property values, hydropower, M&I,
irrigation, etc). Economic methods used to identify actual monetary worth of ecosystem services include: assessment of avoided cost
or replacement value; assessment of amount people are willing to pay for a service; analysis of property values and travel expenditures
associated with proximity; and use of natural areas. As markets for ecosystem services emerge-such as: carbon offset credit markets;
air pollutant cap and trade systems; wetland banks; and watershed effluent trading programs-value can also be detennined by the unit
price for these services. Though we can not quantify all these goods/services, nor economically "value" all of them, we can track
enough of them to find compelling reasons to rethink our approaches to complex water issues.
One of the best examples in the US of ecosystem valuation is the New York City water supply in the Catskills, where the city
invested $1.5 billion to buyout pollution sources and restore the watershed to utilize the (natural) ecosystem services, rather than
spend an estimated $8 billion on treatment plants. (In addition, the annual Operation and Management (O&M) cost for the engineered
solution is $240 million versus $10 to $20 million for the ecosystem approach.
OTHER US EXAMPLES INCLUDE:
· In Massachusetts, 8,500 acres of wetlands were purchased for floodplain management purposes. The $10 million purchase proved
far cheaper and more beneficial than building dams and levees to achieve the same results-though the "built" alternative was
estimated at a cost of $100 million. The wetlands provide "natural services" at 1/10 the cost of the built solution. The long
term O&M costs will also be a fraction of the "build" alternative. An important consideration is that the wetlands will provide
several additional "services" to society that the build alternative would not. Such services include: terrestrial and aquatic
habitats; water quality treatment; water supply/groundwater recharge; geochemical processes; and sediment and erosion control.
· In Virginia, a water utility saved an estimated $57 million in storm water control and maintenance costs by choosing to maintain
forest and riparian buffer areas for stormwater management-instead of "building" flood control infrastructure. The forest and
riparian areas have a value of $57 million that does not appear on real estate or tax appraisals of these properties. Yet, if
developed, these natural services would be degraded or terminated. The consequent "downstream costs" may include: Total
Maximum Daily Load (TMDL) limitations for industry and public facilities (for temperature, nutrients, metals, etc.); sediment
removal; flood detention/retention basins; summer ambient temperature increases (requiring additional energy consumption for
cooling); further species listing; dry season flow reductions; habitat losses; and more. The costs could be ongoing for
years-some having dramatic consequences to local economies (costs of listed species and TMDLs, O&M of storm water
infrastructure). These costs are ultimately born by the utility rate-payer and by the city, county, state and federal taxpayers.
In a recent study for the City of Portland, Oregon, David Evans and Associates, Inc. teamed with ECONorthwest (an economics
firm based in Eugene, Oregon) to estimate the potential return on investment of a wetland/floodplain restoration approach to a
frequently-flooded area of an urban watershed.
DESIGNA TED ECOSYSTEM SERVICES CATEGORIES IN PORTLAND INCLUDED:
FLOOD ABATEMENT - vegetation and soils provide precipitation interception and storage, which abate flooding and avoid flood
damage costs. Flood damage costs associated with nuisance flooding (five-, seven-, and ten-year storm events) were based on
survey data collected for damages incurred as a result of past flooding of residences, businesses, and utilities, along with road
closure costs associated with motorist delays and City costs for emergency services. (Total value of this service provided by the
project over 100 years in 2002 dollars is $14.7 million.)
BIODIVERSITY MAINTENANCE AND RESTORATION - improvement of avian habitat and salmonid habitat was quantified as
an indicator for biodiversity maintenance and restoration created by the project. Value for salmonid habitat improvement was
calculated based on the project's modeled contribution to a fully restored run and the Johnson Creek residents' estimated
willingness to pay for restored salmon runs. Value for avian habitat improvement was calculated based on US Fish and Wildlife
Service Habitat Suitability Index models and a nationwide study that estimated the avian habitat value on a per-acre basis.
(Total value of this service provided by the project in 2002 dollars is $5.7 million.)
AIR QUALITY IMPROVEMENT - specifically the removal of ozone, sulfur dioxide, carbon monoxide, and particulate matter
were valued based on the estimated pollutant removal rates of reforested areas in the Pacific Northwest, and the associated
avoided health care costs of treating ailments associated with air pollution. (Total value of this service provided by the project
over 100 years in 2002 dollars is $2.5 million.)
WATER QUALITY IMPROVEMENT - the estimated value of water quality improvement attributable to water filtration services
provided by restored floodplain wetlands was based on a nationwide survey of avoided filtration costs provided by wetlands.
Because of the lack of adequate local data, the analysis relied on an estimate of generalized water quality benefits instead of
specific water pollutant removal estimates. (Total value of this service provided by the project over 100 years in 2002 dollars is
$2.4 million)
CULTURAL SERVICES - these services include the creation of recreational opportunities (trails, wildlife viewing, etc.) and the
increase of property values in close proximity to the restored natural area (i.e., "amenity value"). The recreational value of the
park to be created as part of the project was estimated based on the estimated number of annual park users and the unit day value
of a visit. The US Army Corps of Engineers has also used this method locally. The amenity value of the project is based on
the results of a "hedonic analysis" which had documented the impact Portland parks and open spaces have on the real estate value
of proximate properties. (Total value of these services provided by the project over 100 years in 2002 dollars is $5.9 million)
To estimate accrued ecological benefits over a period of time as described above, the project team created a system dynamics model
for the analysis with software (STELLA) that has been used for mapping systems in the business and medical sectors for many years.
The team created future scenarios for the Lents area where all of the services in the five main categories were affected to varying
degrees. They were then able to measure the differences in ecosystem function between existing conditions and the future scenarios.
Estimates for the value of improved function were generated based on economic assessments of the monetary worth of ecosystem
services.
Overall, completed analysis indicated that a wetland/floodplain restoration approach on 140 acres could generate benefits for
Portland of more than $30 million (in 2002 dollars) over a 100-year period. The traditional floodplain engineering remedy would have
addressed only flood damages, yet required far greater capital and on-going O&M. The public benefits of restoring the ecosystem
services were substantia1. The choice was to restore the native capital and live off the numerous "interest payments" for the next
hundred years (and beyond.) This evaluation indicates that restoration at a larger scale could demonstrate dramatic benefits to society.
Stormwater management for the City of Portland presents the opportunity to apply ecosystem economics and evaluate larger scale
benefits of ecosystem restoration. Rainwater, normally viewed as an asset, is a management cost for the City of Portland growing six
times faster than the rate-payer base. Given anticipated population growth, Portland predicts a 60 percent increase in impervious
surface within the City's combined sewer system by 2030. Portland is presently investing more than $1 billion to increase the
capacity of its existing stonn sewer system but the increased capacity will only handle a 15 percent increase in impervious area. If the
city can take an ecosystem services approach and "price" the true value (or costs) of the stonnwater, it can restructure the rate base to
reflect actual values. Thus a system of market-based tradable credits could be established to achieve reductions in effective impervious
area, which would also restore natural services such as groundwater recharge, floodplain function and wetland habitats. ESA and CW A
compliance conditions could result as well, thus restoring key watershed functions and eliminating additional capital-intensive and
ecosystem destructive linear solutions.
Conclusion
The benefit-cost analyses undertaken for most projects use traditional economic evaluations, omitting the values provided by
watershed ecosystem services. The result is a relatively narrow conclusion that the dam or diversion will benefit a number of acres
which will produce crops, employ people, bring in supporting commerce, and generate taxes. Complex ecosystems (from small
catchment to Basin scale) have had their "systems integrity" reduced (simplified) and they have thus been compromised in what they
can deliver. A channelized river no longer can provide diverse fish habitat, proper floodplain function, water quality treatment, or
diverse fauna assemblages. The river and its associated life have lost resilience, the ability to adapt and evolve. And we continue to
read about our western water problems.
But what about those 18 ecosystem services on which we can now perfonn valuation? Are they forever altered? What are the lost
values, lost opportunities to use their outputs, goods, services? Without looking at and accounting for the natural capital, we find
ourselves wondering how we ended up with water over-appropriations, annual water quality violations, higher and higher levels of
mechanical wastewater treatment, increasing species listings, and ongoing water rights battles.
FOR ADDITIONAL INFORMATION:
DANIEL HEAGERTY, (David Evans and Associates) 503/499-0412 or email: ddh@deainc.com;
GILLIAN OCKNER, (David Evans & Associates) 503/499-0567 or emaiI: gcf@deainc.com
Daniel Heagerty is a Senior Vice President at David Evans and Associates, Inc. (DEA). He specializes in environmental permit
compliance and regulatory affairs, restoration ecology, and long-range resource and ecosystems management planning.
Gillian Ockner is an environmental scientist and natural resources economist at DEA. She specializes in environmental
management using science, policy, and economics to reach innovative solutions to Clean Water Act and Endangered Species Act
compliance challenges and long-tenn protection of ecosystem services.
BOOKS REFERENCED IN THIS ARTICLE INCLUDE:
DAILY, GRETCHEN c., 1997. Nature's Services: Societal Dependence on Natural Ecosystems - Island Press, Washington, DC.
BROWN, LESTER R., 2001. Eco-Economy: Building an Economy for the Earth - Earth Policy Institute, New York, NY.
ROODMAN, DAVID MALIN, 1998. The Natural Wealth of Nations: Harnessing the Marketfor the Environment - W.W. Norton &
Company, New York, NY.
CITY UF
ASHLAND
Council (:ommunication
An Ordinance of the City of Ashland, Oregon, Regarding Claims for Just
Compensatiion Arising out of the Enactment of Ballot Measure 37, Making
Cert.ain Provisions Therefore, and Declaring an Emergency
Meeting Date: November 30,2004 Primary Staff Contact: Mike Franell JI1~
Department: Legal ~ E-mail: franellm@ashland.or.us r; fI
Contributing Departments: Administration Secondary Staff Contact: None
Approval: Gino Grimaldi ~ E-mail:
Statement:
Measure 37 creates a grievance process for individual property owners that require state or local
government to financially compensate individual property owners if a land use regulation devalues
their property, or amends or forgoes enforcing the law.. The measure does not specify revenue sources
that state or local government should use when compensating property owners' claims.
Measure 37 becomes effective on December 2, 2004 and an ordinance establishing a process to handle
claims filed as a :result of Measure 37 should be in place prior to December 2,2004. As a result, it
should the City Council desire to have an ordinance in place prior to December 2, 2004, adoption of
the proposed ordinance with an emergency ordinance is needed.
Background:
A study session to discuss the implementation of the passage of Ballot Measure 37 was held on
November 17,2004. At the study session it was detennined the City would need to move quickly to.
establish an ordinance regarding claims arising out of Measure 37.
Related City Pc)licies:
None
Council Options:
1. Adopt the ordinance as presented
2. Adopt the ordinance with modifications
3. Adopt the ordinance without declaring an emergency
4. Do nothing
Staff RecommE~ndation:
Staff recommends that council move to approve the first and second readings of the ordinance and to
declare the existence of an emergency.
Potential Motions:
r~'
Move to adopt an ordinance of the City of Ashland, Oregon, regarding claims for just compensation
arising out of the enactment of Ballot Measure 37, making certain provisions therefore, and declaring
an emergency.
Attachments:
Proposed Ordinance.
r~'
ORDINANCE NO.
AN ORDIINANCE OF THE CITY OF ASHLAND, OREGON, REGARDING CLAIMS
FOR JUST COMPENSATION ARISING OUT OF THE ENACTMENT OF BALLOT
MEASURE 37, MAKING CERTAIN PROVISIONS THEREFOR, AND DECLARING AN
EMERGENCY.
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOllOWS:
SECTION 11. A new Chapter 110, Ballot Measure 37 Claims, shall be added to Title 18
of the Ashland Land Use Ordinance (ALUO) which shall read as follows:
ALUO 18.110.001: Purpose. The purpose of this Chapter is to establish the contents of
a demand for just compensation under 2004 Measure 37 in order that the merits of
claims undE~r Measure 37 be adequately evaluated; to provide procedures for
processing such demands; to provide a fair, just and expeditious evaluation of Measure
37 claims by the City; and to protect the citizens of the City of Ashland from the
detrimental effects to public health, safety and welfare that would result from the
granting of non-meritorious claims. The provisions of this Chapter are adopted pursuant
to the City of Ashland's home rule authority under the Oregon Constitution, Article XI,
Section 2, and apply to those demands for just compensation that are or may be
allowed under Measure 37, enacted by the electors of the State of Oregon as a statute
of the State of Oregon on November 2, 2004.
ALUO 18.110.010: Definitions. For the purposes of this Chapter, and the evaluation,
assessment and processing of Measure 37 claims, the following mean:
A. Affected Property: the private real property that is alleged to have suffered a
reduction in fair market value as result of the City's regulation restricting the use of that
property and for which a property owner seeks compensation for the reduction in value.
B. Appraisal: a written statement of an opinion of the value of real property prepared by
an appraisE~r licensed by the Appraiser Certification and Licensure Board of the State of
Oregon, and who holds the applicable certification for the type of appraisal.
C. Claimant the property owner who submits a written claim for just compensation
under Section 18.110.020.
D. City Adnlinistrator: the City Administrator of the City of Ashland, or the City
Administrator's designee.
E. Common and Historically Recognized Public Nuisance Under Common Law:
unreasonable interferences with rights common to the general public in the use and
enjoyment of land, as recognized in judicial decisions applying common law rules.
Under comlllon law rules, an interference is unreasonable if the harm to the public right
.is significant, and the particular public use interfered with is well suited to the character
of the locality and the owner's conduct is unsuited to the character of that locality.
F. Current ()wner: the present fee simple owner of real property that is the subject of the
demand for compensation, as reflected in the deed records of Jackson County, Oregon,
or the presE~nt owner of any interest in real property that is the subject of the demand for
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compensation, as reflected in a written instrument conveying or creating the interest.
G. Demand for Just Compensation: A written demand for just compehsation by a
current owner pursuant to Measure 37 that fulfills the requirements of ALUO
18.110.020.
H. Enforced: to compel conformity with a land use regulation by the issuance of a final
order in a contested judicial or quasi-judicial proceeding; to issue a final deciision
denying an application to use private real property, or interest in real property, for a
stated purpose through the application of a land use regulation as an approval criteria.
I. Exempt Land Use Regulation: A land use regulation that:
1. Restricts or prohibits activities commonly and historically
recognized as public nuisances under common law;
2. Restricts or prohibits activities for the protection of public health and safety,
such as fire and building codes, health and sanitation regulations, solid or hazardous
waste regulations, and pollution control regulations;
3. Is required in order to comply with federal law;
4. Restricts or prohibits the use of property for the purpose of selling
pornography or performing nude dancing; or
5. Was enacted prior to the date of acquisition of the property by the owner or a
family member of the owner.
J. Fair Market Value of the Property: the minimum amount of cash which could
reasonably be expected to be paid for the purchase of a current owner's real property or
interest in real property, by an informed buyer, acting without compulsion, to an
informed seller, also acting without compulsion, in an arms-length transaction.
K. Family member: a member of the current owner's family, as defined by Measure
37.
L. Just Compensation: an amount of money equal to the reduction in the fair market
value of real property that is the direct result of the enactment and enforcement of a
land use regulation which provides the basis for a demand for just compensation, as of
the date a current owner makes the demand for just compensation. A reduction of the
fair market value of property shall exclude any reduction resulting from events, actions
or occurrences other than the restriction of uses permitted by the land use regulation,
and include, but are not limited to, reductions resulting-. from depreciation, changes in
local, state or national economic conditions, failures by the current owner to gainfully
use the real property, lack of public services to the real property, reductions in fair
market value resulting from the existence of an historically or commonly recognized
public nuisance or private nuisance on or about the property or surrounding property,
changes in the value of the real property resulting from fluctuations in the real estate
market, or conditions on surrounding property, changes in value resulting from the
existence of any private covenants, conditions and restrictions, or changes in value
caused by any other easements or restrictions on the property or the use thE~reof.
M. Land Use Regulation: a land use regulation as defined by Measure 37.
N. Interest in Real Property: any legally recognized, alienable interest in rea II property,
having monetary value, which is less than a fee simple absolute.
O. Measure 37 claim: a claim for just compensation arising from the circumstances set
forth in Ballot Measure 37, adopted by the people of the State of Oregon on November
2, 2004.
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P. Real Property: privately held lots, parcels or tracts, as described in the deed
conveying the real property, or the interest in real property as conveyed in such lots,
parcels or tracts, owned by a current owner.
Q. Restricts the Use of Property: prohibiting a particular use of the property or making
that use only permissible under certain conditions. Standards that regulate the form of
development, how a structure must be constructed, or how grading or fill is to be
conducted, such as yard setback requirements, height limitations, erosion control
measures and building code standards, are not restrictions on the use of property.
Regulations requiring or setting fees to be charged are not restrictions on the use of
property.
ALUO 18.1110.015. Measure 37 Demands; Ripeness; Claim Accrual.
A. The currE~nt owner of real property may submit a demand for just compensation
under Measure 37 if the City enforces a land use regulation, other than an exempt
regulation, clgainst the property; the land use regulation was enacted after the date the
current owntsr, or, in proper case, a family member of the owner, acquired the real
property; the land use regulation restricts uses permitted on the real property; and the
restriction inlposed by the land use regulation has the effect of causing a reduction in
the fair market value of the real property.
B. Any currE~nt owner who intends to assert a Measure 37 claim shall make that
intention known at the time the owner submits an application for any permit that would
result in the use of the land use regulation that would be the basis for the Measure 37
claim as an approval criteria.
C. No enforc~ement shall be deemed to have occurred merely because the current
owner has submitted a.demand for just compensation to the City and the demand for
just compensation was denied. Nothing in this subsection shall be deemed to prevent
the City fronil engaging in any action that would result in the resolution of a potential
claim under Measure 37 prior to the date the land use regulation is enforced against the
current owner's real property.
ALUO 18.1'10.020. Contents of Demands for Compensation; Filing.
A. In order to adequately, completely and expeditiously assess the validity of a current
owner's dennand for compensation, and to protect the public interest when determining
whether to rnodify, remove or not apply a land use regulation, any demand for
compensation submitted to the City shall consist of and include the following:
1. A completed demand for just compensation signed by the current owner, upon
forms prescribed by the City Administrator;
2. Copies of all deeds and other instruments conveying interests in the affected
real property to the current owner;
3. A title report issued not more than thirty days prior to the submission of the
demand for just compensation, which shall include the title history, the. date the current
owner acquired title to the real property, the interests held by any other current owners,
an identification of any restrictions on use of the real property unrelated to the land use
regulation against which just compensation is sought, including, but not limited to, any
restrictions established by covenants, conditions and restrictions; easements, other
private restrictions, or other regulations, restrictions or contracts.
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4. A list of the names and addresses, according to the most recent property tax
assessment role, of all property owners owning land within two hundred feet of the
exterior boundaries of the property for which a demand for just compensation is being
made.
5. A copy of the land use regulation(s) that is(are) the basis for the de!mand for
just compensation; .
6. A copy of the land use regulation( s), showing the uses which were allowed at
the time the current owner, or in relevant case the family member, acquired the property
for which a demand for just compensation is being made.
7. For a Measure 37 claim based on descent, proof that the prior owner was
a family member of the current owner.
8. Copies of any leases, easements, contracts or covenants, conditiol1s and
restrictions (CCRs) applicable to the real property, if any, that impose restrictions on the
use of the property.
9. The amount of the alleged reduction in fair market value of the real
property that the current owner believes is the amount of just compensation, together
with the methodology for arriving at the alleged reduction in fair market valuE~ and any
supporting documentation such as an appraisal by an appraiser licensed by the
Appraiser Certification and Licensure Board of the State of Oregon.
10. Any other facts the current owner believes are material to the evaluation and
assessment of claim for just compensation.
11. A $250 application processing fee.
B. Demands for just compensation shall be submitted to the City Administrator. No
demand for just compensation shall be deemed submitted until all materials required by
this section have been provided to the City Administrator by the current ownlsr. A notice
of submission shall be sent to the current owner at the time the City Administrator
determines the current owner's demand for just compensation has been dee~med
submitted.
C. Notwithstanding a claimant's failure to provide all of the information and/or the
application processing fee required by subsection (A) of this section, the city may review
and act on a claim.
ALUO 18.110.025. Notice of Demand for Just Compensation.
A. The City Administrator shall mail notice of demand to any other owner with an
interest in the current owner's real property, and to all owners of real property located
within two hundred feet of the current owner's real property, as listed on the most recent
property tax assessment rolls. The notice shall:
1. State the basis of the demand, the amount of the compensation sought and
the land use regulation which is the basis of the demand;
2. Identify the current owner's real property by the street address or other easily
understood geographical reference;
3. State that persons noticed may provide written comments on the d<<3mand, and
provide the date on which written comments are due;
4. Identify a city representative and telephone number to contact to obtain
additional information; and
5. State that a copy of the demand and the supporting documents submitted by
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the current owner are available for inspection at no cost, and that copies will be
provided at reasonable cost.
B. Written comments regarding a demand may be submitted to the City Administrator.
Comments rnust be received by the City Administrator within 14 days from the date of
mailing of the notice of demand for just compensation.
ALUO 18.1110.030. Claim Processing and Evaluation.
A. After the current owner's demand for just compensation is deemed submitted or is
processed as provided in ALUO 18.11 0.020( c), the City Administrator shall review and
evaluate the demand and determine whether the demand meets the requirements, and
satisfies the criteria, of Measure 37. The City Administrator may obtain other appraisals
and opinions of the value of the real property for the purposes of evaluating the current
owner's estimate of the reduction in the fair market value.
B. The currE~nt owner has the burden of proof to demonstrate to the City by a
preponderance of the evidence that just compensation is due under Measure 37.
C. The City Administrator may deny a claim for just compensation based upon the
following findings:
1. The regulation does not restrict the use of the private real property.
2. The fair market value of the property is not reduced by the pas~age or
enforcement of the regulation.
3. The claim was not timely filed.
4. The Claimant is not the current property owner.
5. The Claimant or family member of Claimant was not the property owner at the
time the regulation was adopted.
6. The regulation is a historically and commonly recognized nuisance law or a
law regulating pornography or nude dancing.
7. The regulation is required by federal law.
8. The regulation protects public health and safety.
9. The City is not the entity responsible for payment. The City is not responsible if
the challen~led law, rule, ordinance, resolution, goal or other enactment was not
enacted by the City.
10. The City has not taken final action to enforce or apply the regulation to the
property for which compensation is claimed.
11. The Claimant is not legally entitled to compensation for a reason other than
those listed in subsections 1 through 10. The basis for this finding must be clearly
explained.
12. The City Council has not established a fund for payment of claims under
Measure 3i'.
D. The City Administrator shall maintain a record of all costs, including personnel costs,
incurred by the City in processing the demand for just compensation. The City shall bill
the current owner for all costs incurred, less the $250 application fee provided for in
ALUO 18.11 0.020(a)(11). The current owner shall remit to the City an amount equal to
such costs 'within thirty days after the date of billing. In the event the City determines
that just cOlllpensation should be paid, the costs, less the $250 application fee shall be
refunded. In the event the current owner files an action in circuit court and prevails, the
claim proce!ssing costs, less the $250 claim processing application fee provided for in
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ALUO 18.11 0.020(a)(11), shall be added to the judgment as a cost or disbursement, so
long as the current owner has timely paid those costs.
ALUO 18.110.035. Notice to City Council and Council Decision.
A. In the ev~nt the City Administrator has denied the demand, or in the event the City
Administrator has recommended a determination that the demand is valid, the City
Administrator shall forward the decision to the City Council, supported by findings. If the
City Administrator recommends the demand be granted, in whole or in part, the City
Administrator shall include a recommendation whether just compensation should be
paid and the amount of such compensation, or whether the land use regulation be
modified, removed or not applied to the real property.
B. If the City Administrator's decision is to deny the demand in whole, and no City
Councilor requests a hearing regarding the demand within ten days after reGeiving
notice of the decision, the City Administrator may issue a summary denial.
C. The City Administrator shall schedule a public hearing before the City Council on any
demand for just compensation, other than demand for which a summary denial has
issued under subsection (b) of this section. Notice of the public hearing shall be
provided to the current owner, to all persons entitled to notice under ALUO "18.110.025,
and to neighborhood groups and community organizations whose boundariE~s include
the current owner's real property. Notice may also be published in a newspaper of
general circulation within the City, at the City Administrator's discretion.
D. After public hearing, the City Council may: ,
1. Deny the demand for just compensation based upon one of the grounds for
denial set forth in ALUO 18.11 0.030(C).
2. Award compensation, either in the amount requested, or in some other amount
supported by the evidence in the record. Payment of any compensation is subject to the
availability and appropriation of funds for that purpose.
3. Modify the regulation.
4. Remove the regulation.
5. Not apply the regulation.
.6. Acquire the affected Property through negotiation or eminent domain.
7. Take such other actions as the Council deems appropriate consistent with
Measure 37.
E. The City Council's decision to modify, remove or waive the land use regulation shall
be based on whether the public interest would be better served by either paying just
compensation to the current owner or by modifying, removing or waiving the land use
regulation and shall be in the form of a resolution.
F. The Owner shall bear the burden of proof relating to the Demand and entitlement to
just compensation. The city shall bear the burden of proof to show that the regulation is
exempt under Measure 37, or ALUO 18.110.010(1). The standard of proof shall be by a
preponderance of the evidence.
G. A copy of the city council decision shall be sent by mail to the Owner and to each
individual or entity that participated in the review process, provided a mailin~1 address or
email address was provided to the city as part of the review process. The city council
may establish any relevant conditions of approval for compensation, should
compensation be granted, or for any other action taken under this subsection.
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H. Failure to comply with any condition of approval is grounds for revocation of the
approval of the compensation for the Demand, grounds for recovering any
compensation paid and grounds for revocation of any other action taken under this
Section.
I. A decision to remove, modify or not apply a land use regulation is personal to the
Owner, and shall automatically become void and invalid if the Owner conveys the
Property to another person before development of the Property consistent with the
removal of, l11odification of or decision to not apply the land use regulation is completed.
Development of the Property under this sub-section shall not be deemed to be
completed until a certificate of occupancy or other appropriate certificate indicating
completion is issued by the City of Ashland building official.
J. In the ev€!nt the Owner (or the Owner's successor in interest, if the development is
completed as described in ALU018.11 0.035(1)) fails to fully comply with all conditions of
approval or otherwise does not comply fully with the conditions of approval, the city may
institute a re:vocation or modification proceeding before the city council.
AlUO 18.1110.040. Modification, Removal or Waiver of land Use Regulation.
A. If the City Council directs that the land use regulation be modified, removed, not
. applied or w'aived, then the current owner shall be allowed to use the real property for a
use permittE!d at the time the current owner acquired the property. Successors in
interest to the current owner shall acquire their interests in the real property subject to
such land use regulations as are in effect as of the date of the successor's acquisition of
the real property, as provided by Subsection (3)(E) of Measure 37, and such interests
shall have the legal status otherwise provided by law.
B. A copy of any resolution modifying, removing or waiving the land use regulation shall
be recorded in the deed records of the county wherein the real property lies.
AlUO 18.1-10.045. Private Cause of Action.
A. In order to protect the reasonable investment-based expectations of other property
owners who have relied upon land use regulations in purchasing real property, if:
1. The modification, removal or waiver of the land use regulation pursuant to
Measure 37 results in a private nuisance on other owners' real property, then:-tt:1e
affected owner or owners shall have a cause of action in circuit court against the current
owner to abate the nuisance or to recover an amount equal to the diminution of value in
that owner or owner's real property as a result of the nuisance;
2. The city council's approval of a claim by removing or modifying a land use
regulation causes a reduction in value of other property located in the vicinity of the
Property, the owner(s) of the other property shall have a cause of action in the
appropriate Oregon Circuit Court to recover from the Owner( s) (of the Property subject
to the Demand) in the amount of such reduction in value.
B. The prevailing party in an action set forth in subsection A of this section shall be
entitled to roasonable attorney's fees and costs at trial and upon appeal.
AlUO 18.1'10.050. Attorney Fees. If a Demand under Measure 37, and this Section is
denied or not fully paid within 180 days of the date of filing a completed Demand, and
the Owner c:ommences suit or action to collect compensation, and if the city is the
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prevailing party in such action, then city shall be entitled to any sum which a court,
including any appellate court, may adjudge reasonable as attorney's fees. In the event
the city is the prevailing party and is represented by "in-house" counsel, the prevailing
party shall nevertheless be entitled to recover reasonable attorney fees based upon the
reasonable time incurred and the attorney fee rates and charges reasonably and
generally accepted in Ashland, Oregon, for the type of legal services perforrned.
SECTION 2. Severability. The sections, subsections, paragraphs and clauses of this
ordinance are severable. The invalidity of one section, subsection, paragraph, or clause
shall not affect the validity of the remaining sections, subsections, paragraphs and
cI.auses.
SECTION 3. Emergency. The City Council of the City of Ashland finds that the health,
safety and welfare of the City of Ashland requires this ordinance to have imrrlediate
effect. Therefore, the City Council hereby declares the existence of an emer~lency and
this ordinance shall be in full force and effect from the time of its passage by the Council
and approval by the Mayor.
The foregoing ordinance was first read by title only in accordance with Article X,
Section 2(C) of the City Charter on the
day of
, 2004,
, 2004.
and duly PASSED and ADOPTED this
day of
Barbara Christensen, City Recorder
SIGNED and APPROVED this
day of
, 2004.
Alan W. DeBoer, Mayor
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ORDINANCE NO.
AN ORDINANCE OF THE CITY OF ASHLAND, OREGON, REGARDING CLAIMS
FOR JUST COMPENSATION ARISING OUT OF THE ENACTMENT OF BALLOT
MEASURE :~7, MAKING CERTAIN PROVISIONS THEREFOR, AND DECLARING AN
EMERGENCY.
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:
SECTION 1. A new Chapter 110, Ballot Measure 37 Claims, shall be added to Title 18
of the Ashland Land Use Ordinance (ALUO) which shall read as follows:
ALUO 18.110.001: Purpose. The purpose of this Chapter is to establish the contents of
a demand for just compensation under 2004 Measure 37 in order that the merits of
claims under Measure 37 be adequately evaluated; to provide procedures for
processing such demands; to provide a fair, just and expeditious evaluation of Measure
37 claims by the City; and to protect the citizens of the City of Ashland from the
detrimental E~ffects to public health, safety and welfare that would result from the
granting of non-meritorious claims. The provisions of this Chapter are adopted pursuant
to the City of Ashland's home rule authority under the Oregon Constitution, Article XI,
Section 2, and apply to those demands for just compensation that are or may be
allowed undE~r Measure 37, enacted by the electors of the State of Oregon as a statute
of the State of Oregon on November 2, 2004.
ALUO 18.110.010: Definitions. For the purposes of this Chapter, and the evaluation,
assessment and processing of Measure 37 claims, the following mean:
A. Affected Property: the private real property that is alleged to have suffered a
reduction in 'fair market value as result of the City's regulation restricting the use of that
property and for which a property owner seeks compensation for the reduction in value.
B. Appraisal: a written statement of an opinion of the value of real property prepared by
an appraiser licensed by the Appraiser Certification and Licensure Board of the State of
Oregon, and who holds the applicable certification for the type of appraisal.
C. Claimant: the property owner who submits a written claim for just compensation
under Section 18.110.020.
D. City Administrator: the City Administrator of the City of Ashland, or the City
Administrator's designee.
E. Common and Historically Recognized Public Nuisance Under Common Law:
unreasonable interferences with rights common to the general public in the use and
enjoyment of land, as recognized in judicial decisions applying common law rules.
Under comnlon law rules, an interference is unreasonable if the harm to the public right
is significant, and the particular public use interfered with is well suited to the character
of the locality and the owner's conduct or use of the land is unsuited to the character of
that locality.
F. Current C~wner: the present fee simple owner of real property that is the subject of the
demand for compensation, as reflected in the deed records of Jackson County, Oregon,
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or the present owner of any interest in real property that is the subject of the demand for
compensation, as reflected in a written instrument conveying or creating the interest.
G. Demand for Just Compensation: A written demand for just compensation by a
current ownHr pursuant to Measure 37 that fulfills the requirements of ALUO
18.110.020.
H. Enforced: to compel conformity with a land use regulation by the issuance of a final
order in a contested judicial or quasi-judicial proceeding; to issue a final decision
denying an application to use private real property, or interest in real property, for a
stated purpose through the application of a land use regulation as an approval criterion.
I. Exempt Land Use Regulation: A land use regulation that:
1. Restricts or prohibits activities commonly and historically
recognized as public nuisances under common law;
2. Restricts or prohibits activities for the protection of public health and safety,
such as fire and building codes, health and sanitation regulations, solid or hazardous
waste regulations, and pollution control regulations;
3. Is required in order to comply with federal law;
4. Restricts or prohibits the use of property for the purpose of selling
pornography or performing nude dancing; or
5. Was enacted prior to the date of acquisition of the property by the owner or a
family member of the owner.
J. Fair Mark1et Value of the Property: the minimum amount of cash which could
reasonably be expected to be paid for the purchase of a current owner's real property or
interest in re~al property, by an informed buyer, acting without compulsion, to an
informed seller, also acting without compulsion, in an arms-length transaction.
K. Family member: a member of the current owner's family, as defined by Measure
37.
L. Just Compensation: an amount of money equal to the reduction in the fair market
value of real property that is the direct result of the future enactment of a land use
regulation OIl' enforcement of an existing land use regulation which provides the basis for
a demand for just compensation, as of the date a current owner makes the demand for
just compensation. A reduction of the fair market value of property shall exclude any
reduction resulting from events, actions or occurrences other than the restriction of uses
permitted by the land use regulation. A reduction in fair market value shall not include
reductions nesulting from depreciation, changes in local, state or national economic
conditions, failures by the current owner to gainfully use the real property, lack of public
services to the real property, reductions in fair market value resulting from the existence
of a historically or commonly recognized public nuisance or private nuisance on or
about the property or surrounding property, changes in the value of the real property
resulting frolm fluctuations in the real estate market, or conditions on surrounding
property, changes in value resulting from the existence of any private covenants,
conditions and restrictions, changes in value caused by any other easements or
restrictions on the property or the use thereof or reductions related to any other factors
other than n~ductions which are the direct result of the enactment or enforcement of a
land use re~lulation.
M. Land Us.~ Regulation: a land use regulation as defined by Measure 37.
N. Interest in Real Property: any legally recognized, alienable interest in real property,
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having monetary value, which is less than a fee simple absolute.
O. Measure 37 claim: a claim for just compensation arising from the circumstances set
forth in Ballot Measure 37, adopted by the people of the State of Oregon on November
2, 2004.
P. Real Property: privately held lots, parcels or tracts, as described in the deed
conveying the real property, or the interest in real property as conveyed in such lots,
parcels or tracts, owned by a current owner.
Q. Restricts the Use of Property: prohibiting a particular use of the property or making
that use only permissible under certain conditions. Standards that regulate the form of
development, how a structure must be constructed, or how grading or fill is to be
conducted, such as yard setback requirements, height limitations, erosion control
measures and building code standards, are not restrictions on the use of property.
Regulations requiring or setting fees to be charged are not restrictions on the use of
property.
ALUO 18.110.015. Measure 37 Demands; Ripeness; Claim Accrual.
A. The current owner of real property may submit a demand for just compensation
under Measure 37 if the City enforces a land use regulation, other than an exempt
regulation, against the property; the land use regulation was enacted after the date the
current ownE~r, or, in proper case, a family member of the owner as defined in ALUO
18.110.010, acquired the real property; the land use regulation restricts uses permitted
on the real property; and the restriction imposed by the land use regulation has the
effect of causing a reduction in the fair market value of the real property.
B. Any CUrrE!nt owner who intends to assert a Measure 37 claim shall make that
intention known at the time the current owner submits an application for any permit that
would result in the use of the land use regulation that would be the basis for the
Measure 37 claim as an approval criteria.
C. No enforGement shall be deemed to have occurred merely because the current
owner has submitted a demand for just compensation to the City and the demand for
just compensation was denied. Nothing in this subsection shall be deemed to prevent
the City fronl engaging in any action that would result in the resolution of a potential
claim under Measure 37 prior to the date the land use regulation is enforced against the
current owner's real property.
ALUO 18.1"10.020. Contents of Demands for Compensation; Filing.
A. In order to adequately, completely and expeditiously assess the validity of a current
owner's den1and for compensation, and to protect the public interest when determining
whether to compensate for, modify, remove or not apply a land use regulation, any
demand for compensation submitted to the City shall consist of and include the
following:
1. A completed demand for just compensation signed by the current owner and
all others having an ownership interest in the property. The demand shall be submitted
upon forms prescribed by the City Administrator.
2. Copies of all deeds and other instruments conveying interests in the affected
real property to the current owner.
3. A title report issued not more than thirty days prior to the submission of the
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demand for Just compensation, which shall include the title history, the date the current
owner acquired title to the real property, the interests held by any other current owners,
an identificajlion of any restrictions on use of the real property unrelated to the land use
regulation a~~ainst which just compensation is sought, including, but not limited to, any
restrictions E~stablished by covenants, conditions and restrictions; easements, other
private restrictions, or other regulations, restrictions or contracts.
4. A list of the names and addresses, according to the most recent property tax
assessment role, of all property owners owning land within two hundred feet of the
exterior boundaries of the property for which a demand for just compensation is being
made.
5. A copy of the land use regulation(s) that is(are) the basis for the demand for
just compensation. All potential claims of the current owner must be consolidated at the
time a demand for just compensation is made.
6. A copy of the land use regulation(s), showing the uses which were allowed at
the time the current owner, or in relevant case the family member, acquired the property
for which a demand for just compensation is being made.
7. For' a Measure 37 claim based on descent; proof that the prior owner was
a family mernber of the current owner.
8. Copies of any leases, easements, contracts or covenants, conditions and
restrictions (CCRs) applicable to the real property, if any, that impose restrictions or
other encuITlbrances on the use of the property.
9. Th9 amount of the alleged reduction in fair market value of the real
property that the current owner believes is the amount of just compensation, together
with the methodology for arriving at the alleged reduction in fair market value and any
supporting documentation such as an appraisal by an appraiser licensed by the
Appraiser C~9rtification and Licensure Board of the State of Oregon.
10. Any other facts the current owner believes are material to the evaluation and
assessment of claim for just compensation.
11. A $250 application processing fee.
B. Demands for just compensation shall be submitted to the City Administrator. No
demand for ,just compensation shall be deemed submitted until all materials required by
this section have been provided to the City Administrator by the current owner. A notice
of submission shall be sent to the current owner at the time the City Administrator
determines the current owner's demand for just compensation has been deemed
submitted.
C. Notwithstanding a claimant's failure to provide all of the information and/or the
application processing fee required by subsection (A) of this section, the city may revie'v\j
and act on a claim. ~~~,
ALUO 18.1110.025. Notice of Demand for Just Compensation. ~
A. The City Administrator shall mail notice of demand to any other owner with an
-H. ~ I~~terest in the current owner's real property, and to all owners of real property located
, ~ with~lUndred feet of the current owner's real property, as listed on the most recent
property tax assessment rolls. The notice shall:
1. State the basis of the demand, the amount of the compensation sought and
the land use! regulation which is the basis of the demand;
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2. Identify the current owner's real property by the street address or other easily
understood ~Jeographical reference;
3. Stalte that persons noticed may provide written comments on the demand, and
provide the date on which written comments are due;
4. Identify a city representative and telephone number to contact to obtain
additional information; and
5. State that a copy of the demand and the supporting documents submitted by
the current owner are available for inspection at no cost, and that copies will be
provided at reasonable cost.
B. Written comments regarding a demand may be submitted to the City Administrator.
Comments rnust be received by the City Administrator within 14 days from the date of
mailing of the notice of demand for just compensation.
ALUO 18.1110.030. Claim Processing and Evaluation.
A. After the current owner's demand for just compensation is deemed submitted or is
processed as provided in ALUO 18.110.020(c), the City Administrator shall review and
evaluate the demand and determine whether the demand meets the requirements, and
satisfies the criteria, of Measure 37. The City Administrator may obtain other appraisals
and opinions of the value of the real property for the purposes of evaluating the current
owner's estilmate of the reduction in the fair market value.
B. The currE~nt owner has the burden of proof to demonstrate to the City by a
preponderance of the evidence that just compensation is due under Measure 37. H me. or /Yl.(f1"~ '"
C. The City Administrator may deny a claim for just compensation based upon/.!~e~
following findings: ~ '0
1. The regulation that is the subject of the claim does not restrict the use of the
private real property.
2. The fair market value of the property is not reduced by the enactment or
enforcement of the regulation.
3. The claim was not timely filed.
4. The Claimant is not the current property owner.
5. The Claimant or family member of Claimant was not the property owner at the
time the regulation was adopted.
6. The regulation is a historically and commonly recognized nuisance law or a
law regulating pornography or nude dancing. "
7. The regulation is required by federal law. l" 6V'
8. The regulation protects public health .amrsafety.
9. The City is not the entity responsible for payment. The City is not responsible if
the challen~,ed law, rule, ordinance, resolution, goal or other enactment was not
enacted by the City.
10. The City has not taken final action to enforce or apply the regulation to the
property for which compensation is claimed.
11. The Claimant is not legally entitled to compensation for a reason other than
those listed in subsections 1 through 10. The basis for this finding must be clearly
explained.
12. The City Council has not established a fund for payment of claims under
Measure 37'.
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D. The City Administrator shall maintain a record of all costs, including personnel costs,
incurred by the City in processing the demand for just compensation. The City shall bill
the current owner for all costs incurred, less the $250 application fee provided for in
ALUO 18.11 0.020( a)( 11). The current owner shall remit to the City an amount equal to
such costs v{ithin thirty days after the date of billing. In the event the City determines
that just cornpensation should be paid, the costs, less the $250 application fee shall be
refunded. In the event the current owner files an action in circuit court and prevails, the
claim processing costs, less the $250 claim processing application fee provided for in
ALUO 18.11 0.020(a)(11), shall be added to the judgment as a cost or disbursement, so
long as the current owner has timely paid those costs.
ALUO 18.1110.035. Notice to City Council and Council Decision.
A. In the eVHnt the City Administrator has denied the demand, or in the event the City
Administrator has recommended a determination that the demand is valid, the City
Administrator shall forward the decision to the City Council, supported by findings. If the
City Administrator recommends the demand be granted, in whole or in part, the City
Administrator shall include a recommendation whether just compensation should be
paid and the~ amount of such compensation, or whether the land use regulation be
modified, relmoved or not applied to the real property. ct MU'llwt<.u\1 oJ- af
B. If the City Administrator's decision is to deny the demand in whole, Q!)M ng City lLa4t ~
CounciloMequests a hearing regarding the demand within ten days after receiving
notice of the! decision, the City Administrator may issue a summary denial.
C. The City Administrator shall schedule a public hearing before the City Council on any
demand for just compensation, other than demands for which a summary denial has
~issued under subsection (B) of this section. Notice of the public hearing shall be
provided to the current owner, to all persons entitled to notice under ALUO 18.110.025,
to neighborhood groups and community organizations whose boundaries include the
current owner's real property and to those requesting notice. Notice may also. be
published in a newspaper of general circulation within the City, at the City
Administrator's discretion.
D. After public hearing, the City Council may:
1. De!ny the demand for just compensation based upon one of the grounds for
denial set forth in ALUO 18.11 0.030(C).
2. A"'fard compensation, either in the amount requested, or in some other amount
supported by the evidence in the record. Payment of any compensation is subject to the
availability and appropriation of funds for that purpose.
3. Modify the regulation.
4. Remove the regulation.
5. Not apply the regulation.
6. Acquire the affected Property through negotiation or eminent domain.
7. Take such other actions as the Council deems appropriate consistent with
Measure 37.
E. The City Council's decision to modify, remove or waive the land use regulation shall
be based on whether the public interest would be better served by either paying just
compensation to the current owner or by modifying, removing or waiving the land use
regulation and shall be in the form of a resolution.
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F. The OwnHr shall bear the burden of proof relating to the Demand and entitlement to
just compensation. The city shall bear the burden of proof to show that the regulation is
exempt undHr Measure 37, or ALUO 18.110.010(1). The standard of proof shall be by a
preponderance of the evidence.
G. A copy of the City Council decision shall be sent by mail to the Current Owner, to
each person with an ownership interest, and to each individual or entity that participated
in the revie",' process, provided a mailing address or email address was provided to the
city as part of the review process. The City Council may establish any relevant
conditions of approval for compensation, should compensation be granted, or for any
other action taken under this subsection.
H. Failure to comply with any condition of approval is grounds for revocation of the
approval of the compensation for the Demand, grounds for the City to recover any
compensation paid and grounds for revocation of any other action taken under this
Section.
I. A decision to remove, modify or not apply a land use regulation is personal to the
Owner, and shall automatically become void and invalid if the Owner conveys the
Property to another person before development of the Property consistent with the
removal of, 11l0dification of or decision to not apply the land use regulation is completed.
Development of the Property under this sub-section shall not be deemed to be
completed until a certificate of occupancy or other appropriate certificate indicating
completion is issued by the City of Ashland building official.
J. In the event the Owner (or the Owner's successor in interest, if the development is
completed aiS described in ALU018.11 0.035(1)) fails to fully comply with all conditions of
approval or otherwise does not comply fully with the conditions of approval, the city may
institute a re!vocation or modification proceeding before the city council.
AlUO 18.1"10.040. Modification, Removal or Waiver of land Use Regulation.
A. If the City Council directs that the land use regulation be modified, removed, not
applied or w'aived, then the current owner shall be allowed to use the real property for a
use permitte~d at the time the current owner acquired the property. Successors in
interest to the current owner shall acquire their interests in the real property subject to
such land use regulations as are in effect as of the date of the successor's acquisition of
the real property, as provided by Subsection (3)(E) of Measure 37, and such interests
shall have the legal status otherwise provided by law.
B. A copy olf any City resolution compensating for, modifying, removing or waiving the
land use re~Julation shall be recorded in the deed records of the county wherein the real
property lies.
C. A copy of all claims submitted and the final decision and action taken in response to
it will be provided by the City Administrator at least annually to the State of Oregon-
designated agency tracking cases related to Measure 37.
ALUO 18.1'10.045. Private Cause of Action.
A. In order to protect the reasonable investment-based expectations of other property
owners who have relied upon land use regulations in purchasing real property, if:
1. The modification, removal or waiver of the land use regulation pursuant to
Measure 37 results in a private nuisance on other owners' real property, then the
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affected owner or owners shall have a cause of action in circuit court against the current
owner to abate the nuisance or to recover an amount equal to the diminution of value in
that owner or owner's real property as a result of the nuisance;
2. Thc~ City Council's approval of a claim by removing or modifying a land use
regulation causes a reduction in value of other property located in the vicinity of the
Property, the owner( s) of the other property shall have a cause of action in the
appropriate IDregon Circuit Court to recover from the Owner( s ) (of the Property subject
to the Demand) in the amount of such reduction in value.
B. The prevailing party in an action set forth in subsection A of this section shall be
entitled to reasonable attorney's fees and costs at trial and upon appeal.
ALUO 18.1110.050. Attorney Fees. If a Demand under Measure 37 and this Section is
denied or not fully paid within 180 days of the date of filing a completed Demand, and
the Owner commences suit or action to collect compensation, and, if the City is the
prevailing party in such action, then City shall be entitled to any sum which a court,
including any appellate court, may adjudge reasonable as attorney's fees. In the event
the City is the prevailing party and is represented by "in-house" counsel, the prevailing
party shall nevertheless be entitled to recover reasonable attorney fees based upon the
reasonable 1time incurred and the attorney fee rates and charges reasonably and
generally accepted in Ashland, Oregon, for the type of legal services performed.
SECTION 2. Severability. The sections, subsections, paragraphs and clauses of this
ordinance are severable. The invalidity of one section, subsection, paragraph, or clause
shall not affc~ct the validity of the remaining sections, subsections, paragraphs and
clauses.
SECTION 3. Emergency. The City Council of the City of Ashland finds that the health,
safety and vvelfare of the City of Ashland requires this ordinance to have immediate
effect. Therefore, the City Council hereby declares the existence of an emergency and
this ordinance shall be in full force and effect from the time of its passage by the Council
and approval by the Mayor.
The foregoing ordinance was first read by title only in accordance with Article X,
Section 2(C) of the City Charter on the
and duly PASSED and ADOPTED this
day of
, 2004,
,2004.
day of
[1 ]
Barbara Christensen, City Recorder
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SIGNED and APPROVED this
Reviewed as to form:
Michael W. Franell, City Attorney
day of
,2004.
Alan W. DeBoer, Mayor
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TO: ASHLAND CITY COUNCIL
FROM: MARY-KAY MICHELSEN
281 0 Diane St
Ashland OR
DATE: November 30, 2004
RE: AN ORDINANCE IMPLEMENTING MEASURE 37
I believe that it is essential for local governments to establish an open,
public process for handling claims for compensation or waiver made under
Measure 37 (M37). My readings of the proposed ordinace before you today
appears to do that. I have a few suggestions which I will bring up in order of
their appearance.
ALUO 1 8.11 0.020.A. Contents of Demands for Compensation;
Filing.
7. Considering the potential for incompatible impacts under M3 7, the notice
distance, although the same as your general planning notices, is short. 200
feet is only two houses on my side of my street and four smaller houses
across the street. That is close. The League of Oregon Cities, in their
Sample Measure 37 Claims Processing Ordinance (p.5), suggests a 300 feet
notice distance. This would be more protective and I would strongly urge you
to increase the notice distance.
9. (3rd line from bottom of paragraph) ...and any supporting documentation
such as an appraisal by an appraiser licensed by... Using the term such as
does not require an appraisal- from a licensed appraiser. Are you willing to
accept less evidence than an appraisal to determine the values before and
after the prote.sted regulation? I believe an appraisal from an appraiser
licensed by the Appraiser Certification and Licensure Board of the State of
Oregon should be the minimum accepted evidence. I think that was your
intent.
ALUO 1 8.110.025. Notice of Demand for Just Compensation
A. Why did you not include "neighborhood groups and community
organizations whose boundaries include the current owner's real property" in
this section as you did on p.6 (ALUO 18.11 0.035.C)? I recommend you do
so.
ALUO 1 8.11-0.35. Notice to City Council and Council Decision.
C. Typo: line three ...subsection (b)...should not this be a capital B?
Last sentence: Notice may also be published... ( emphasis added). Why is this
permissive? I believe public notice is essential at all stages of M37
compensation claims processes. Even if the public cannot testify, they need
to be aware of what they have wrought and that the entire process is
completely open and above board.
If one lando'Nner can file a claim for compensation or a waiver of land-use
regulations, then his or her neighbors and local taxpayers should know about
it in advance, and they should be able to participate in the decision-making.
All taxpayers will be involved in any compensation claims that are paid.
Cate's COml11ents Kev:
CAPS is a Question or comment
Other commlents are sUQQested chanQes
ORDINANCE NO.
AN ORDIINANCE OF THE CITY OF ASHLAND, OREGON, REGARDING CLAIMS
FOR JUST COMPENSATION ARISING OUT OF THE ENACTMENT OF BALLOT
MEASURE 37, MAKING CERTAIN PROVISIONS THEREFOR, AND DECLARING AN
EMERGENCY.
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:
SECTION 1. A new Chapter 110, Ballot Measure 37 Claims, shall be added to Title 18
of the Ashland Land Use Ordinance (ALUO) which shall read as follows:
ALUO 18.1110.001: Purpose. The purpose of this Chapter is to establish the contents of
a demand for just compensation under 2004 Measure 37 in order that the merits of
claims under Measure 37 be adequately evaluated; to provide procedures for
processing such demands; to provide a fair, just and expeditious evaluation of Measure
37 claims by the City; and to protect the citizens of the City of Ashland from the
detrimentalleffects to public health, safety and welfare that would result from the
granting of non-meritorious claims. The provisions of this Chapter are adopted pursuant
to the City of Ashland's home rule authority under the Oregon Constitution, Article XI,
Section 2, and apply to those demands for just compensation that are or may be
allowed under Measure 37, enacted by the electors of the State of Oregon as a statute
of the State of Oregon on November 2,2004.
ALUO 18.1 ~10.010: Definitions. For the purposes of this Chapter, and the evaluation,
assessment and processing of Measure 37 claims, the following mean:
A. Affected Property: the private real property that is alleged to have suffered a
reduction in fair market value as result of the City's regulation restricting the use of that
property and for which a property owner seeks compensation for the reduction in value.
B. Appraisal: a written statement of an opinion of the value of real property prepared by
an appraiser licensed by the Appraiser Certification and Licensure Board of the State of
Oregon, and who holds the applicable certification for the type of appraisal.
C. Claimant: the property owner who submits a written claim for just compensation
under Section 18.110.020. WE REFER TO A CURRENT OWNER BELOW; SHOULD
THIS SAY "CURRENT OWNER" OR ARE WE REQUIRING ONLY THE PROPERTY
OWNER TO FILE A CLAIM? ALSO, WE TALKED ABOUT CONSOLIDATION OF
OWNERS ON A CLAIM; DO WE INTEND TO MAKE JOINT OWNERS OR INTEREST
HOLDERS CONSOLIDATE CLAIMS?
D. City Administrator: the City Administrator of the City of Ashland, or the City
Administrator's designee.
E. Common and Historically Recognized Public Nuisance Under Common Law:
unreasonable interferences with rights common to the general public in the use and
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enjoyment of land, as recognized in judicial decisions applying common law rules.
Under comnnon law rules, an interference is unreasonable if the harm to the public right
is significant, and the particular public use interfered with is well suited to the character
of the locality and the owner's conduct or proiect is unsuited to the character of that
locality. DO WE MEAN TO HAVE THREE HANDS" HERE, WHICH CONNOTES ALL
FACTORS rv1UST BE IN PLACE FOR NUISANCE TO BE IN EFFECT? DOES
HISTORIC PUBLIC USE FIT UNDER CHARACTER OF THE LOCALITY OR WOULD
WE WANT TO ADD THAT?
F. Current Owner: the present fee simple owner of real property that is the subject of the
demand for compensation, as reflected in the deed records of Jackson County, Oregon,
or the present owner of any interest in real property that is the subject of the demand for
compensation, as reflected in a written instrument conveying or creating the interest.
G. Demand for Just Compensation: A written demand for just compensation by a
current owner pursuant to Measure 37 that fulfills the requirements of ALUO
18.110.020.
H. Enforced: to compel conformity with a land use regulation by the issuance of a final
order in a contested MUST IT BE CONTESTED? iudicial or quasi-judicial proceeding; to
issue a final decision denying an application to use private real property, or interest in
real property, for a stated purpose through the appl ication of a land use or
transportation regulation as an approval criteria.
I. Exempt Land Use Regulation: A land use regulation that:
1. Re!stricts or prohibits activities commonly and historically
recognized as public nuisances under common law;
2. Re!stricts or prohibits activities for the protection of public health and safety,
such as fire and building codes, health and sanitation regulations, solid or hazardous
waste regulations, and pollution control regulations;
3. Is Irequired in order to comply with federal law;
4. Re!stricts or prohibits the use of property for the purpose of selling
pornography or performing nude dancing; or
5. Was enacted prior to the date of acquisition of the property by the owner or a
family member of the owner.
J. Fair Mark.et Value of the Property: the minimum amount of cash which could
reasonably Ibe expected to be paid for the purchase of a current owner's real property or
interest in rE~al property, by an informed buyer, acting without compulsion, to an
informed seller, also acting without compulsion, in an arms-length transaction.
K. Family member: a member of the current owner's family, as defined by Measure
37.
L. Just Compensation: an amount of money equal to the reduction in the fair market
value of real property that is the direct result of the enactment and enforcement of a
land use re~Julation which provides the basis for a demand for just compensation, as of
the date a current owner makes the demand for just compensation. A reduction of the
fair market value of property shall exclude any reduction resulting from events, actions
or occurrenees other than the restriction of uses permitted by the land use regulation,
and include. THIS GETS CONFUSING... IT APPEARS WE ARE SAYING THE
FOLLOWING ARE GROUNDS FOR ESTABLISHING REDUCTION IN PROPERTY
VALUE, but are not limited to, reductions resulting from depreciation, changes in local,
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state or national economic conditions, failures by the current owner to gainfully use the
real property, lack of public services to the real property, reductions in fair market value
resulting froln the existence of an historically or commonly recognized public nuisance
or private nuisance on or about the property or surrounding property, changes in the
value of the real property resulting from fluctuations in the real estate market, or
conditions on surrounding property, changes in value resulting from the existence of any
private covenants, conditions and restrictions, or changes in value caused by any other
easements or restrictions on the property or the use thereof.
l M. Land Uso Regulation: a land use regulation as defined by Measure 37.
N. Interest in Real Property: any legally recognized, alienable interest in real property,
having monE~tary value, which is less than a fee simple absolute.
O. Measure 37 claim: a claim for just compensation arising from the circumstances set
forth in Ballot Measure 37, adopted by the people of the State of Oregon on November
2, 2004.
P. Real Property: privately held lots, parcels or tracts, as described in the deed
conveying the real property, or the interest in real property as conveyed in such lots,
parcels or tracts, owned by a current owner.
Q. Restricts the Use of Property: prohibiting a particular use of the property or making
that use only permissible under certain conditions. Standards that regulate the form of
development, how a structure must be constructed, or how grading or fill is to be
conducted, such as yard setback requirements, height limitations, erosion control
measures and building code standards, are not restrictions on the use of property.
Regulations requiring or setting fees to be charged are not restrictions on the use of
property.
ALUO 18.1"10.015. Measure 37 Demands; Ripeness; Claim Accrual.
A. The currE~nt owner of real property may submit a demand for just compensation
under Measure 37 if the City enforces a land use regulation, other than an exempt
regulation, against the property; the land use regulation was enacted after the date the
current owner, or, in proper case, a family member of the owner, as defined in ALUO
18.110.015 acquired the real property; the land use regulation restricts uses permitted
on the real property; and the restriction imposed by the land use regulation has the
effect of causing a reduction in the fair market value of the real property.
B. Any currE~nt owner who intends to assert a Measure 37 claim shall make that
intention known at the time the current owner submits an application for any permit that
would result in the use of the land use regulation that would be the basis for the
Measure 37 claim as an approval criteria.
IS THIS WHERE WE SHOULD ADDRESS THE ISSUE OF MULTIPLE OWNERS
FILING MULTIPLE CLAIMS?
C. No enforcement shall be deemed to have occurred merely because the current
owner has submitted a demand for just compensation to the City and the demand for
just compensation was denied. Nothing in this subsection shall be deemed to prevent
the City fronn engaging in any action that would result in the resolution of a potential
claim under Measure 37 prior to the date the land use regulation is enforced against the
current owner's real property.
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ALUO 18.1'10.020. Contents of Demands for Compensation; Filing.
A. In order to adequately, completely and expeditiously assess the validity of a current
owner's denland for compensation, and to protect the public interest when determining
whether to ~X)mpensate for, modify, remove or not apply a land use regulation, any
demand for compensation submitted to the City shall consist of and include the
following:
1. A Gompleted demand for just compensation signed by the current owner, upon
forms prescribed by the City Administrator;
2. Copies of all deeds and other instruments conveying interests in the affected
real property to the current owner;
3. A title report issued not more than thirty days prior to the submission of the
demand for just compensation, which shall include the title history, the date the current
owner acquired title to the real property, the interests held by any other current owners,
an identification of any restrictions on use of the real property related or unrelated to the
land use re~Julation against which just compensation is sought, including, but not limited
to, any restrictions established by covenants, conditions and restrictions; easements,
other privatE~ restrictions, or other regulations, restrictions or contracts;
4. A list of the names and addresses, according to the most recent property tax
assessment role, of all property owners owning land within two hundred feet of the
exterior boundaries of the property for which a demand for just compensation is being
made.
5. A GOPy of the land use regulation(s) that isjare) the basis for the demand for
just compensation;
6. A GOPy of the land use regulation(s), showing the uses DO WE WANT USES
"RELATED" TO THE CLAIM OR AN EXHAUSTIVE LIST OF POSSIBLE USES AT
THAT TIME? 'Nhich that were ffi-allowed at the time the current owner, or in relevant
case the farnily member, acquired the property for which a demand for just
compensation is being made.
7. For a Measure 37 claim based on descent, proof that the prior owner was
a family melllber of the current owner.
8. Copies of any leases, easements, contracts or covenants, conditions and
restrictions (gfL"CCR's) applicable to the real property, if any, that impose restrictions
on the use of the property.
9. The amount of the alleged reduction in fair market value of the real
property that the current owner believes is the amount of just compensation, together
with the methodology for arriving at the alleged reduction in fair market value and any
supporting documentation such as an appraisal by an appraiser licensed by the
Appraiser Certification and Licensure Board of the State of Oregon.
10. Any other facts the current owner believes are material to the evaluation and
assessment of claim for just compensation.
11. A. $250 application processing fee.
B. Demands for just compensation shall be submitted to the City Administrator. No
demand for just compensation shall be deemed submitted until all materials required by
this section have been provided to the City Administrator by the current owner. A notice
of submission shall be sent to the current owner at the time the City Administrator
determines the current owner's demand for just compensation has been deemed
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submitted.
C. Notwithstanding a claimant's failure to provide all of the information and/or the
application processing fee required by subsection (A) of this section, the city may review
and act on a claim.
ALUO 18.1 ~I 0.025. Notice of Demand for Just Compensation.
A. The City Administrator shall mail notice of demand to any other owner with an
interest in the current owner's real property, and to all owners of real property located
within two hundred feet of the current owner's real property, as listed on the most recent
property tax assessment rolls. The notice shall:
1. State the basis of the demand, the amount of the compensation sought and
the land USE~ regulation which is the basis of the demand;
2. IdE~ntify the current owner's real property by the street address or other easily
understood geographical reference;
3. State that persons noticed may provide written comments on the demand, and
provide the date on which written comments are due;
4. IdE~ntify a city representative and telephone number to contact to obtain
additional information; and
5. State that a copy of the demand and the supporting documents submitted by
the current owner are available for inspection at no cost, and that copies will be
provided at reasonable cost.
B. Written comments regarding a demand may be submitted to the City Administrator.
Comments rnust be received by the City Administrator within 14 days from the date of
mailing of trle notice of demand for just compensation. ARE THESE THE EQUIVALENT
OF PUBLIC HEARING COMMENTS OR ONLY GERMANE TO WHETHER THE CLAIM
ITSELF IS VALID?
ALUO 18.1'10.030. Claim Processing and Evaluation.
A. After the current owner's demand for just compensation is deemed submitted or is
processed as provided in ALUO 18.11 O.020( c), the City Administrator shall review and
evaluate thE~ demand and determine whether the demand meets the requirements, and
satisfies the criteria, of Measure 37. The City Administrator may obtain other appraisals
and opinions of the value of the real property for the purposes of evaluating the current
owner's estimate of the reduction in the fair market value.
B. The currE~nt owner has the burden of proof to demonstrate to the City by a
preponderance of the evidence that just compensation is due under Measure 37.
C. The City Administrator may deny a claim for just compensation based upon the
following findings:
1. The regulation that is the subiect of the claim does not restrict the use of the
private real property,
2. The fair market value of the property is not reduced by the passage enactment
or enforcement of the regulation.
3. The claim was not timely filed.
4. The Claimant is not the current property owner.
5. The Claimant or family member of Claimant was not the property owner at the
time the regulation was adopted.
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6. The regulation is a historically and commonly recognized nuisance law or a
law regulating pornography or nude dancing.
7. The regulation is required by federal law.
8. The regulation protects public health and safety.
9. The City is not the entity responsible for paymentenactment or enforcement.
The City is not responsible ifof the challenged law, rule, ordinance, resolution, QLgoat
WHY IS 'GOAL ON THIS LIST? WE CAN'T ENFORCE A GOAL. or other enactment
\vas not enzlcted by the City.THIS COULD PREVENT US FROM HANDLING CLAIMS
WITHIN THE AREA OF MUTUAL CONCERN WITH THE COUNTY.
10. The City has not taken final action to enforce or apply the regulation to the
property for which compensation is claimed.
11. The Claimant is not legally entitled to compensation for a reason other than
those listed in subsections 1 through 10. The basis for this finding must be clearly
explained.
12. The City Council has not established a fund for payment of claims under
Measure 37. CAN WE REALLY DENY A CLAIM BASED ON THE FACT THAT WE
HAVEN'T APPROPRIATED MONEY TO COMPENSATE?
D. The City Administrator shall maintain a record of all costs, including personnel costs,
incurred by the City in processing the demand for just compensation. The City shall bill
the current owner for all costs incurred, less the $250 application fee provided for in
ALUO 18.1 ~I 0.020(a)(11). The current owner shall remit to the City an amount equal to
such costs ,,,,ithin thirty days after the date of billing. OR WHAT? LIENS ON
PROPERT'1'. COURT ACTION? In the event the City determines that just
compensation should be paid, the costs, less the $250 application fee shall be
refunded. v\fOULD WE ALSO REFUND IT IF WE DECIDED TO WAIVE THE
REGULATION. OR DO WE KEEP IT IN THAT CASE? In the event the current owner
files an action in circuit court and prevails, the claim processing costs, less the $250
claim processing application fee provided for in ALUO 18.11 0.020(a)(11), shall be
added to thB judgment as a cost or disbursement, so long as the current owner has
timely paid those costs.
ALUO 18.1" 0.035. Notice to City Council and Council Decision.
A. In the event the City Administrator has denied the demand, or in the event the City
Administrator has recommended 3 determination that the demand is valid, tIhe City
Administrator shall forward tRe-all claims decision to the City Council, supported by
recommended findings. If the City Administrator recommends the demand be granted,
in whole or in part, the City Administrator shall include a recommendation whether just
compensation should be paid and the amount of such compensation, or whether the
land use re~}ulation be modified, removed or not applied to the real property.
B. If the City Administrator's decision is to deny the demand in whole, and no City
Councilor rE~quests a hearing regarding the demand within ten days after receiving
notice of thE~ decision, the City Administrator may issue a summary denial.
C. The City Administrator shall schedule a public hearing before the City Council on any
demand for just compensation, other than demand~ for which a summary denial has
been issuecl under subsection (Be) of this section. Notice of the public hearing shall be
provided to the current owner, to all persons entitled to notice under ALUO 18.110.025,
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aA4-to neighborhood groups and community organizations whose boundaries include
the current owner's real property, and to those requestinQ notice. Notice may also be
published in a newspaper of general circulation within the City, at the City
Administrator's discretion.
D. After public hearing, the City Council may:
1. Deny the demand for just compensation based upon one of the grounds for
denial set forth in ALUO 18.11 0.030(C).
2. A~vard compensation, either in the amount requested, or in some other amount
supported by the evidence in the record. Payment of any compensation is subject to the
availability and appropriation of funds.:. for that purpose.THIS WOULD INDICATE THAT
COUNCILS WOULD BE CONSTRAINED FROM COMPENSATING UNLESS THE
BUDGET REFLECTED AHEAD OF TIME THAT MONEY WAS DEDICATED FOR
THAT SPECIFIC PURPOSE.
3. Modify the regulation.
4. Remove the regulation.
5. Not apply the regulation.
6. Acquire the affected Property through negotiation or eminent domain.
7. Take such other actions as the Council deems appropriate consistent with
Measure 37.
E. The City Council's decision to modify, remove or waive the land use regulation shall
be based on whether the public interest would be better served by either paying just
compensation to the current owner or by modifying, removing or waiving the land use
regulation and shall be in the form of a resolution.
F. The Owner shall bear the burden of proof relating to the Demand and entitlement to
just compensation. The city shall bear the burden of proof to show that the regulation is
exempt under Measure 37, or ALUO 18.110.010(1). The standard of proof shall be by a
preponderance of the evidence.
G. A copy of the GCity GCouncil decision shall be sent by mail to the CURRENT Owner
OR OF RECORD? ALL OR MANY? and to each individual or entity that participated in
the review process, provided a mailing address or email address was provided to the
city as part of the review process. The GCity G.Qouncil may establish any relevant
conditions of approval for compensation, should compensation be granted, or for any
other action taken under this subsection.
H. Failure bv current owner to comply with any condition of approval is grounds for
revocation of the approval of the compensation for the Demand, grounds for the City to
recover~ any compensation paid and grounds for revocation of any other action taken
under this Section.
I. A decision to remove, modify or not apply a land use regulation is personal to the
Owner, and shall automatically become void and invalid if the Owner conveys the
Property to another person before development of the Property consistent with the
removal of, modification of or decision to not apply the land use regulation is completed.
Development of the Property under this sub-section shall not be deemed to be
completed until a certificate of occupancy or other appropriate certificate indicating
completion is issued by the City of Ashland building official.
J. In the eVE~nt the Owner (or the Owner's successor in interest, if the development is
completed as described in ALU018.11 0.035(1)) fails to fully comply with all conditions of
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approval or otherwise does not comply fully with the conditions of approval, the city may
institute a re!vocation or modification proceeding before the GCity GCouncil.
ALUO 18.1 ~I 0.040. Modification, Removal or Waiver of Land Use Regulation.
A. If the City Council directs that the land use regulation be modified, removed, not
applied or w'aived, then the current owner shall be allowed to use the real property for a
use permitte~d at the time the current owner acquired the property. Successors in
interest to t~1e current owner shall acquire their interests in the real property subject to
such land use regulations as are in effect as of the date of the successor's acquisition of
the real property, as provided by Subsection (3)(E) of Measure 37, and such interests
shall have the legal status otherwise provided by law.
B. A copy ojf any City resolution compensatina for, modifying, removing or waiving the
land use re~Julation shall be recorded in the deed records of the county wherein the real
property lies.
C. A copy of all claims submitted and the final decision and action taken in response to
it will be provided by the City Administrator at least annually to the State of Oreaon-
desianated aaency trackina cases related to Measure 37.
ALUO 18.1" 0.045. Private Cause of Action.
A.Jn order to protect the reasonable investment-based expectations of other property
owners who have relied upon land use regulations in purchasing real property, if:
1. The modification, removal or waiver of the land use regulation pursuant
Measure 37 results in a private nuisance on other owners' real property, then the
affected owner or owners shall have a cause of action in circuit court against the current
owner to abate the nuisance or to recover an amount equal to the diminution of value in
that owner or owner's real property as a result of the nuisance;
2. The GCity GCouncil's approval of a claim by removing or modifying a land use
regulation causes a reduction in value of other property located in the vicinity of the
Property, the owner(s) of the other property shall have a cause of action in the
appropriate Oregon Circuit Court to recover from the Owner( s) (of the Property subject
to the Demand) in the amount of such reduction in value.
B. The prevailing party in an action set forth in subsection A of this section shall be
entitled to rE~asonable attorney's fees and costs at trial and upon appeal.
ALUO 18.1 '10.050. Attorney Fees. If a Demand under Measure 37, and this Section is
denied or not fully paid within 180 days of the date of filing a completed Demand, and
the Owner commences suit or action to collect compensation, if the city is the prevailing
party in such action, then city shall be entitled to any sum which a court, including any
appellate court, may adjudge reasonable as attorney's fees. In the event the city is the
prevailing party and is represented by "in-house" counsel, the prevailing party shall
nevertheless be entitled to recover reasonable attorney fees based upon the reasonable
time incurre!d and the attorney fee rates and charges reasonably and generally
accepted in Ashland, Oregon for the type of legal services performed.
SECTION ~~. Severability. The sections, subsections, paragraphs and clauses of this
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ordinance are severable. The invalidity of one section, subsection, paragraph, or clause
shall not affE~ct the validity of the remaining sections, subsections, paragraphs and
clauses.
SECTION 3" Emergency. The City Council of the City of Ashland finds that the health,
safety and 'JI/elfare of the City of Ashland requires this ordinance to have immediate
effect. Therofore, the City Council hereby declares the existence of an emergency and
this ordinance shall be in full force and effect from the time of its passage by the Council
and approval by the Mayor.
The foregoing ordinance was first read by title only in accordance with Article X,
Section 2( C) of the City Charter on the
day of
,2004,
,2004.
and duly PASSED and ADOPTED this _ day of
Barbara M. Christensen, City Recorder
SIGNED and APPROVED this _ day of
,2004.
Alan W. DeBoer, Mayor
Reviewed as to form:
Michael W. Franell, City Attorney
Questions and comments:
Why the decision to file with the City Administrator's office? Who will handle the claims?
1000 Friends recommends
You can encouraae your local jurisdictions to use the central claims reaistrv beina created
by the Oreaon Department of Administrative Services. Doina so will enhance cooperation
and efficiency amonast qovernment iurisdictions and provide public access to claims
records.
I suaaest that we add: C. in .040 for this reason
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Page 1 of2
Mike,
I have reviewed the draft ordinance for M37 and think it is a
remarkable effort. Thank you.
My comments are few and specific.
18.110.010 definition E, I am unfamiliar with the use of the term
"public right", but it sounds potentially useful.
18.110.010 H: Should the last sentence end with criterion single or
criteria plural (presence of the word 'an' in front of approval
criteria)?
18.110.010 L: Does inclusion of the phrase "lack of public services to
the real property" mean that a claimant cannot assume the presence of
services in the appraisal if the services do not presently come to the
property? If so, this would mean that claimants have to acknowledge
that the lack of existing public services would probably be reducing
the highest potential value, or conversely that if the services did
exist then the property would be worth more?
18.110.020.A.8. Do we want only those leases etc that impose
restrictions or copies of all documents attached to the property? I am
thinking of public utility easements for power poles crossing the land,
or leases for cell towers, some of which could contribute to an
increased value that a claimant may not be acknowledging in the claim
18.110.025: Should the Notice of Demand include proof that an
enforcement has t:tken place, thus making the claim 'ripe' among the 10
items listed in this section?
>
18.110.035.B. Would requiring a response supporting denial by a
quorum of Council be appropriate? Should a response one way or the
other by majority of Councilors and Mayor be required? I respect your
desire to not be too strict on what the City's responsibilities include.
18.110.040.A. Does the sentence that begins "Successors in interest to
the current owner" mean that if a claim is made, approved and a
regulation waived, but no construction is completed to Certificate of
Occupancy, that the new owner does not possess the same rights to the
resolved claim waiver?
18.110.050. Should there be a comma after the words ", and this
Section", or perhaps no commas at all in the first phrase until the one
after the word "Demand,"? Because the sentence continues with another
"if' phrase, it is rather long. As long as it is clear legally to you,
I'm okay with it. Is there a need to state anything about attorneys
fees if the owner is the prevailing party or is it in the Measure or
okay to leave unstated?
You have done a gireat job on this, in my mind. Thanks again.
Sincerely,
Kate
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