Measure 49 Passes- New Rules for Cities
Effective December 6, 2007
REQUIREMENTS FOR CLAIMS FILED PRIOR TO JUNE 28, 2007
- Claims are now limited to residential claims only- commercial, industrial, billboard claims are no longer allowed. These include the sub-division or partition of land for single family dwellings, or the establishment of single family dwellings on land on which the dwellings would not otherwise be allowed.
- Property owners must prove they had the right to develop home sites when they acquired the property, and one or more non-exempt land use regulation(s) enacted on or before January 1, 2007 must prohibit the development of the dwelling and have been enacted after the property was annexed to a city. Exempt regulations include regulations addressing public health and safety, those that are reasonably necessary to avoid or abate a nuisance or those required by federal law.
- Property owners with a valid claim filed prior to June 28, 2007 are limited to a maximum of 10 dwellings on property within an urban growth boundary. Claims filed prior to June 28, 2007 for more than 10 dwellings may be amended to reduce the number to no more than 10.
- Claimants must prove a loss of value by an appraisal that justifies the number of new home sites permitted, and by following the statutory guidance for calculation.
- If the original claim was filed by the property owner after December 4, 2006, claimants must also provide a copy of a final land use decision that denied an application by the claimant for the residential use describe in the claim. If the claim was filed after December 4, 2006, and did not include a final land use decision denying the residential use described in the claim, the property owner is not entitled to relief.
- Cities, counties, and Metro must coordinate the review and decision of any overlapping claims.
PROCESS FOR CLAIMS FILED PRIOR TO JUNE 28, 2007
If a city issued a waiver before December 6, 2007:
- The city must review the claim, the record on the claim, and the waiver to determine whether the property owner is entitled to relief under the new regulations. The review must be completed no later than 240 days after August 1, 2008.
- The city may issue a written request to the property owner for additional information, if needed, and the property owner must file the required information within 90 days.
- The city must provide written notice to the property owner, the Oregon Department of Land Conservation and Development and other qualified people entitled to notice of tentative determination as to whether the property owner qualifies for relief - and if it does, the number of single-family dwellings authorized.
- The property owner has 15 days to submit evidence or arguments, after which the city makes a final determination.
- A final determination must be made by September 29, 2008, and is subject to appeal in the county where the property is located.
If a city has not issued a waiver before December 6, 2007:
- The city must send notice to the property owner by March 5, 2008, including an explanation that the property owner is entitled to seek relief under the new regulations; an identification of the information that the property owner must file; and a form for the claimant's use.
- Property owner must respond within 120 days, and file any necessary information.
- City must complete a tentative review no later than 120 days after receipt of notice from property owner, and provide notice of a tentative determination as to whether the property owner qualifies for relief, and if so, the number of single family dwellings authorized.
- Property owner has 15 days to submit evidence or arguments, after which the city makes a final determination.
- A final determination must be made within 180 days after receipt of the notice from the property owner and is subject to appeal in the county where the property is located.
Under the new regulations, an authorization to establish dwellings on the property is a permitted use and may be transferred, but the subsequent owner must establish the dwellings within 10 years.
Other important changes include the extension of claimant's rights to surviving spouses, and an authorization for local governments to implement and administer transferable development rights, that allow development to occur in a location different from where the waiver was granted.
REQUIREMENTS FOR CLAIMS FILED AFTER JUNE 28, 2007
- Claims must be for residential use only, and a property owner's use of the property is restricted by one or more non-exempt land use regulations that are enacted after January 1, 2007, and after the property was annexed to a city.
- Claimants must prove a loss of value by appraisal that justifies the number of new home sites requested, that follows statutory guidance for calculation, and that determines the highest and best use of the property at the time the land use regulation was enacted.
- If a claim is determined to be valid, a city must either: compensate the claimant for the reduction of fair market value or authorize the claimant to use the property without application of the land use regulation to the extent of the reduction of fair market value of the property. Any use authorized by a waiver is considered a lawful nonconforming use.
PROCESS FOR CLAIMS FILED AFTER JUNE 28, 2007
- Claims must be filed with the public entity that enacted the land use regulation that is the basis for the claim, by all owners of a property, and only one claim for each property may be filed for each land use regulation. Claims must be filed within five years after the date in which the land use regulation was enacted, and must contain the information required by statute, including an appraisal, description of the restricting regulation and desired use of the property.
- Cities may impose a fee for the review of a claim in an amount not to exceed the actual and reasonable cost of reviewing the claim.
- Cities must issue a final determination within 180 days after the date the claim is complete. If claim is incomplete, the city must notify the claimant within 60 days after receiving the claim and allow response from the claimant.
- Once a claim is complete, notice must be provided at least 30 days before a hearing (if desired by the city) or 30 days before a deadline of submission of comments to: the claimant; property owners as per quasi-judicial hearing requirements; the Oregon Department of Land Conservation and Development; and appropriate county, and/or Metro. Notice requirements and hearing procedures are described in detail by the new statutory provisions.
- Cities must mail a copy of the final determination to the claimant and persons that submitted written evidence or arguments before the close of the record. Cities must also forward the final determination to the county for recording in the deed records in which the property is located.
- Final determinations are subject to appeal in the county where the property is located.
Further questions about Measure 49 can be addressed to Linda Ludwig at:
lludwig@orcities.org - http://www.orcities.org/