HomeMy WebLinkAbout2948 Measure 49
ORDINANCE NO. o..qL\ <6
AN ORDINANCE AMENDING CHAPTER 18 OF THE ASHLAND
MUNICIPAL CODE, PROVIDING FOR REVISIONS TO MEASURE 37 CLAIMS
ORDINANCE TO ADDRESS ADOPTION OF MEASURE 49
WHEREAS, Article 2. Section 1 of the Ashland City Charter provides:
Powers of the City The City shall have all powers which the constitutions,
statutes, and common law of the United States and of this State expressly
or impliedly grant or allow municipalities, as fully as though this Charter
specifically enumerated each of those powers, as well as all powers not
inconsistent with the foregoing; and, in addition thereto, shall possess all
powers hereinafter specifically granted. All the authority thereof shall
have perpetual succession.
WHEREAS, the above referenced grant of power has been interpreted as
affording all legislative powers home rule constitutional provisions reserved to
Oregon Cities. City of Beaverton v. International Ass'n of Firefighters, Local
1660, Beaverton Shop 20 Or. App. 293,531 P 2d 730, 734 (1975); and
WHEREAS, ORS 197.352(5) expressly authorizes local governments to establish
procedures governing new claims under Section 12 to14 of Measure 49; and
WHEREAS, the City Council of the City of Ashland has determined that in order
to protect the health, safety and welfare of the residents of the City of Ashland, it
is necessary to establish review procedures and requirements for Measure 49
claims, consistent with state law.
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:
SECTION 1: Chapter 18.110, "Ballot Measure 37 Claims", is hereby amended to
read as follows:
18.110 Ballot Measure 49 Claims
18.110.005 Purpose and Scope
A. ORS 197.352(5) authorizes local government to establish
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procedures governing new claims under Section 12 to 14 of Ballot
Measure 49 (2007). These provisions are in addition to and not in lieu of
the requirements of Ballot Measure 49.
B. As it relates to City claims, Ballot Measure 49 permits
compensation claims only when a non-exempt City land development
regulation, enacted after January I, 2007, restricts the residential use of
private real property zoned for primarily single family residential use
and it can be demonstrated in a qualified appraisal that the restriction
reduces fair market value.
18.110.010 Definitions
For the purposes of this Chapter, and the evaluation, assessment and
processing of Measure 49 claims, the following mean:
A. "Ballot Measure 49" means the measure enacted by the voters at
the November, 2007 General Election, which amended ORS
Chapter 197.
B. "Claim" means a written demand for compensation filed under
Section 12 to 14 of Measure 49 and ORS 197.25, as in effect on and
after the effective date of Measure 49
C. "Claimant" means the person who has filed a claim. The claimant
must be a current owner of the property that is the subject of the
claim.
D. "City Administrator": the City Administrator of the City of
Ashland, or the City Administrator's designee.
E. "Fair market value" is the amount of money, in cash, that the
property would bring if the property was offered for sale by a
person who desires to sell the property but is not obligated to sell
the property, and if the property was bought by a person who
was willing to buy the property but not obligated to buy the
property. The fair market value is the actual value of property,
with all of the property's adaptations to general and special
purposes. The fair market value of property does not include any
prospective value, speculative value or possible value based upon
future expenditures and improvements.
F. "Interest" Is the average interest rate for a one-year United States
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Government Treasury Bill on December 31 of each year of the
period between the date the land use regulation was enacted and
the date the claim was filed, compounded annually on January 1
of each year of the period.
G. "Land Use Regulation" means a provision of a city
comprehensive plan, zoning ordinance or land division ordinance
that restricts the residential use of private real property zoned for
residential use.
H. "Property" means the private real property described in a claim
and contiguous private real property that is owned by the same
owner, whether or not the contiguous property is described in
another claim, and that is not property owned by the federal
government, an Indian tribe or a public body, as defined in ORS
192.410.
I. "Reduction in fair market value" means the difference, if any, in
the fair market value of the property from the date that is one
year before the enactment of the land use regulation to the date
that is one year after the enactment, plus interest.
J. "Urban growth boundary" has the meaning given that term in
ORS 195.060.
K. "Waive" or "Waiver" means an action or decision authorizing the
claimant to use the property without application of the land use
regulation(s) to the extent necessary to offset the reduction in fair
market value of the property.
18.110.015 Measure 49: Delegation of authority to City Administrator
A. The City Administrator is delegated authority to determine
the validity of, and grant non-monetary compensation for, claims
filed under Section 12 to 14 of Measure 49 after June 28, 2007. The
City Administrator may not authorize monetary payment for any
claim, nor may the City Administrator award transferable
development credits.
B. The City Administrator may forward any claim to the City
Council for resolution if the City Administrator determines it
would be in the public interest to do so. The City Administrator
shall forward a claim to the City Council for a decision if the City
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Administrator concludes that payment of monetary
compensation or an award of transferable development credits is
an appropriate remedy.
18.110.020 Measure 49: Claim for Compensation
A. Filing. All claims shall be filed with the City
Administrator in person or by U.S. mail. The filing date is
the date the claim is received by the City.
B. Submittal requirements:
1. Claimant shall file a fully executed and completed
Measure 49 claim form provided by the City
Community Development Department including:
a. the name and address of each owner and
the date (supported by evidence) when the
property was acquired.
b. the address, if any, tax lot number,
township, range and section of the property
that is the subject of the claim;
c. a specific statement of the person's desired
use of the property for residential use;
d. a specific reference ( or citation) to each
land use regulation enacted after January I,
2007 that is alleged to restrict the person's
desired use of the property and when the
land use regulations were enacted (the
reference must be specific enough to permit
the City to identify the precise regulation);
e. the amount of reduction in fair market
value (supported by evidence) alleged for
each regulation at issue plus interest;
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f. whether a previous permit was issued for
development of the property including a
description of the use and case file number;
g. whether a claim was filed for the subject
property with the state or any other
government; and
h. any other information reasonably related to
the review and processing of the claim as
required by the Director of Community
Development or as provided on the
Measure 49 claim form.
2. Claimant shall also provide:
a. evidence of the acquisition date of the
claimant, including the instrument
conveying the property to the claimant and
a report from a title company identifying
the person in which title is vested and the
claimant's acquisition date and described
exceptions and encumbrances to title that
are of record;
b. the written consent of all of the owners if
there is more than one owner;
c. a qualifying appraisal (consistent with
Section 12 (2) of the Measure) showing the
fair market value of the property one year
before the enactment of each land use
regulation and the fair market value of the
property one year after the enactment. The
actual and reasonable cost of preparing the
claim, evidenced by receipts, including the
cost of the appraisal, not to exceed $5,000,
may be added to the calculation of the
reduction in fair market value under this
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subsection. The appraisal must: (1) be
prepared by a person certified under ORS
chapter 674 or a person registered under
ORS chapter 308; (2) comply with the
Uniform Standards of Professional
Appraisal Practice, as authorized by the
Financial Institutions Reform, Recovery,
and Enforcement Act of 1989; and (3)
expressly determine the highest and best
use of the property at the time the land use
regulation was enacted; and
d. a claim review fee to cover the actual and
reasonable cost of reviewing the claim, of
seven hundred fifty dollars ($750) or such
other claim(s) review fee as set by
Resolution of the City Council.
3. Only one claim for each property may be filed for
each land use regulation.
C. Claim review process. The city shall:
1. deny a claim if:
a. it is not filed within five (5) years from the
date the land use regulation was enacted;
b. an application for a comprehensive plan or
zoning amendment is approved for the
subject property;
c. an application to include the property
within the UGB is approved; or
d. A petition to annex the property is
approved by the city.
2. determine whether a claim is complete within sixty
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(60) days after receiving the claim;
3. notify the claimant of any missing information
within sixty (60) days after receiving the claim;
4. after providing notice of missing information, deem
the application complete if:
a. the claimant provides the missing
information and the required fee; or
b. the claimant provides written statement
that some or all of the missing information
will not be provided and the required fee.
5. deem the application complete if the city fails to
notify the claimant of missing information within
sixty (60) days after receiving the claim;
6. deem the application withdrawn if the claimant fails
to provide the missing information, fee or a written
statement that some or all of the information will
not be provided within the time specified in the
notice of missing information; and
7. issue a final determination on a claim within 180
days from the date the claim is deemed complete.
18.110.025 City Administrator Review and Decision.
A. Claims review process. Upon receipt of a filing, the City
Administrator shall follow the claims review process under
Section 18.110.020.
B. Review criteria. The City Administrator shall determine
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whether to approve or deny the claim based upon the
criteria and standards in Ballot Measure 49 and based
upon a demonstration by the owner that:
1. A city land use regulation enacted after January I,
2007 and after the property was acquired by the
owner(s) restricts the owner's desired residential
use of the property;
2. The city land use regulation has the effect of
reducing the fair market value of the property;
3. The highest and best use of the property at the time
the property was acquired is the owner's desired
use of the property;
4. The land use regulation is not an exempt land use
regulation under the terms of Ballot Measure 49;
5. The time limitations for filing a claim, as specified in
Ballot Measure 49, have not been exceeded; and
6. All other requirements of law, including Measure 49
requirements not specifically stated herein, , have
been met.
C. Acquisition date. The date the property was acquired is:
1. The date the claimant became the owner of the
property as shown in the deed records of Jackson
County;
2. If there is more than claimant for the same property
under the same claim and the claimants have
different acquisition dated, the acquisition date is
the earliest of those dated;
3. If the claimant is the surviving spouse of a person
who was an owner of the property in fee title, the
claimant's acquisition date is the date the claimant
was married to the deceased spouse or the date the
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spouse acquired the property, whichever is later. A
claimant or a surviving spouse may disclaim relief
by using the procedure provided in ORS 105.623 to
105.649; and
4. If a claimant conveyed the property to another
person and reacquired the property, whether by
foreclosure or otherwise, the claimant's acquisition
date is the date the claimant reacquired ownership
of the property.
D. A default judgment entered after December 2, 2004, does
not alter a claimant's acquisition date unless the claimant's
acquisition date is after December 2, 2004.
E Notice of opportunity to comment of staff report. If a claim
is deemed complete and is not rejected, the City
Administrator shall draft a staff report. No less than thirty
days (30) notice of an opportunity to submit written
comments on the staff report shall be sent to:
1. The claimant or representative and all owners of the
subject property known to the City;
2. All property owners of record within one hundred
(100) feet of the subject property.
3. Any formally recognized City neighborhood
association in which the subject property is located;
4. The Department of Land conservation and
Development;
5. Any special district or school district in which the
property is located or which has requested notice;
6. Jackson County; and
F. The notice shall contain:
1. the address, if any , tax lot number, township range
and section of the property that is the subject of the
claim and the date when the property was acquired;
2. a statement of the claim, including the owner's
desired use of the property for residential use;
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3. a summary of the staff report including the number
of dwellings, lots or parcels as well as the specific
regulations alleged to restrict the use of the
property;
4. a statement that the claim, staff report and any
information submitted is available at the Ashland
Community Development Department,51 Winburn
Way, Ashland, Oregon 97520, for inspection or
copying at cost and the phone number of a City staff
contact;
5. a statement that all persons may submit written
comments, evidence and arguments within the
comment period which shall end on a date certain
as specified in the notice (not less than thirty (30)
days from the date the notice is mailed);
6. a statement that judicial review of the final
determination on the claim is limited to the written
evidence and arguments submitted to the city while
the record is open;
7. a statement that prior to the end of the comment
period the claimant may request an additional seven
(7) days to respond to new evidence or to submit
final arguments
8. a statement that judicial review is available only for
issues that are raised with sufficient specificity to
afford the public entity an opportunity to respond;
and
9. any other information as deemed necessary by the
City Administrator.
G. The City Administrator shall consider comments actually
received by the conclusion of the comment period and
such other information as the City Administrator deems
relevant and material. Any request by claimant to respond
to new evidence or to submit final arguments must be
submitted before the close of the written comment period
as provided in the notice. The claimant shall receive seven
days to submit such evidence or argument.
H. Final waiver or rejection of claim. A decision to issue a
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waiver or reject a claim shall be reduced in writing and
signed by the City Administrator. The City Administrator
may waive some regulations identified in the claim and
deny waiver of others. The City Administrator may not
waive regulations that are not specified in the claim. The
City Administrator may impose reasonable conditions on
the waiver to protect the public interest.
I. Notice of final waiver or rejection of a claim. The City
Administrator shall send notice and a copy of the decision
to the claimant. Notice of the final decision shall also be
sent to anyone who submitted any written evidence or
arguments prior to the close of the comment period and to
all persons entitled to notice of the comment period. The
notice shall contain a brief description of the waiver, if any,
including a listing of all regulations that the City
Administrator has decided to not apply and the specific
number of dwellings, lots or parcels authorized by the
waiver. The notice also shall state that a claim has been, or
may need to be, filed with the State, or other entity, if the
City Administrator thinks that a state or other
governmental regulation is implicated.
J. The City Administrator may forward a claim to the City
Council for a public hearing and decision in accordance
with Section 18.110.035 and this Section. The City
Administrator shall consider such factors as: the amount of
compensation at issue; the nature of the proposed use or
development, if any; and the impact of the proposed use or
development. The decision of the City Administrator to
forward the claim to the City Council is final and not
subject to appeal. The City Council, however, may
summarily and without notice or hearing elect to return
the claim to the City Administrator for a decision.
18.110.035 City Council Consideration and Decision.
A. Claim processing. All claims transferred by the City
Administrator to the City Council shall be processed by the City
Administrator consistent with the claims review process provided
under this Chapter. The City Council shall issue a final decision
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after providing notice and a hearing within 180 days from the
date the claim in deemed complete.
B. Notice and hearing. The decision of the City Council shall be
made after a public hearing conducted in accordance with such
procedures as the City Council may adopt. At least thirty (30)
days written notice shall be provided of the public hearing and
include such information as is set forth in Section 18.110.030,
providing all required notices above are modified to include
reference to the public hearing date rather than the comment
period. A staff report will be available at least fourteen (14)
calendar days prior to the hearing addressing:
1. whether the claim filed is complete; and
2. a recommendation as to whether and how much to pay in
compensation, or, in lieu thereof, a recommendation on an
award of transferable development credits, or a
recommendation regarding the number of dwellings and
lots that may be approved and the land regulation(s) that
should be waived.
C. Final decision. The City Council may reject the claim, pay
compensation, award transferable development credits, issue a
waiver or approve any combination of such remedies. The
decision shall otherwise be decided based on the same review
criteria applicable to a decision issued by the City Administrator
under Section 18.110.030. The City Council may waive some
regulations specified in the claim and deny waiver of others. The
City Council is not limited to those regulations listed in the claim
and may impose any conditions of approval that it deems
reasonable and appropriate to protect the public interest. Notice
of the City Council's final decision shall be mailed to any person
entitled to notice of the hearing or that appeared orally or in
writing at the public hearing.
18.110.040 Burden of proof and Record.
The claimant shall have the burden of proof on all matters under
this Chapter. The claimant bears sole responsibility for ensuring
that the record before the City contains all information and
evidence necessary to support the claim. The claimant shall be
precluded from submitting information or raising new issues in
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any subsequent proceeding.
18.110.045 Effect of Waiver
A. A decision to waive a land use regulation shall in no way impact
any obligation to demonstrate compliance with any regulations
not expressly provided for in the decision or to obtain any
required approvals or permits.
B. A use authorized by a waiver has the legal status of a lawful
nonconforming use in the same manner as provided under ORS
215.130. The claimant may carry out a use authorized by a public
entity under this section except that a public entity may waive
only land use regulations that were enacted by thepublic entity.
When a use authorized by this section is lawfully established, the
use may be continued lawfully in the same manner as provided
by ORS 215.130.
18.110.050 Procedural Error.
No procedural defect in processing a claim shall invalidate any
proceeding or decision unless the party alleging the error
demonstrates prejudice to a substantial right. Inadvertent failure
to provide notice or complete notice shall not be grounds for
invalidating a decision.
18.110.060 Recording.
The City shall record a memorandum of the final waiver in the deed
records for Jackson County, Oregon.
18.110.065 Reconsideration of Waiver.
The City Councilor City Administrator may, at its sole discretion,
reconsider a decision on a claim if it appears that the decision is
inconsistent with a subsequent court ruling; administrative rule or other
change in the law relative to Measure 49. The decision to reconsider
may be made without notice or hearing; but, the decision on
reconsideration shall be made only after notice and opportunity to be
heard consistent with the requirements for claim review provided under
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this Chapter for City Administrator and City Council review whichever
is applicable. At the conclusion of the process, the City Councilor City
Administrator may affirm, modify, or revoke the earlier decision. If the
City Council modifies or revokes a decision that resulted in payment of
compensation, the City Council shall specify the amount due from the
claimant and the City may institute an action for recovery. If the City
Councilor City Administrator modifies or revokes a decision to modify,
remove, or not apply a land use regulation, it shall issue an order setting
forth such remedy as it deems appropriate to protect the public interest.
18.110.070 Appeals.
A. A person that is adversely affected by a final determination of
under this Chapter may obtain judicial review of that determination
under ORS 34.010 to 34.100. A person is adversely affected if the person
is:
1. an owner of the property that is the subject of the final
determination or;
2. a person who timely submitted written evidence,
arguments or comments.
B. Judicial review of a decision under this Chapter is:
1. limited to evidence in the record at the time of the
final determination; and
2. available only for issues raised with sufficient specificity to
afford an opportunity to respond.
SECTION 2: Severability. If any section, provision, clause, sentence, or
paragraph of this Ordinance or the application thereof to any person or
circumstances shall be held invalid, such invalidity shall not affect the other
sections, provisions, clauses, or paragraphs of this Ordinance which can be given
effect without the invalid provision or application, and to this end the provisions
of this Ordinance are declared to be severable.
SECTION 3 Savings Clause. Notwithstanding this amendment/repeal, the City
ordinances in existence at the time any criminal or civil enforcement actions were
commenced, shall remain valid and in full force and effect for purposes of all
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cases filed or actions commenced during the times said ordinance(s) or portions
thereof were operative.
SECTION 4. Codification. Provisions of this Ordinance shall be incorporated in
the City Code and the word "ordinance" may be changed to "code", "article",
"section", or another word, and the sections of this Ordinance may be
renumbered, or re-Iettered, and typographical errors and cross-references. may be
corrected by the City Recorder, provided however that any Whereas clauses and
boilerplate provisions (Le. Sections 2-3} need not be codified.
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 l=e.t>yuo.r Ly ,2008,
and duly PASSED and ADOPTED this ~ day of FebY"ucv 0r ,2008.
~~
,
Barbara M. Christensen, City Recorder
SIGNED and APPROVED this.lO day of ~2008.
t
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