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2006-777-Ordinance No. 2006-024 Recorded 8/1/2006REVIE D LEGAL COUNSEL REVIEWED CODE REVIEW COMMITTEE DESCHUTES COUNTY OFFICIAL RECORDS 4J NANCY BLANKENSHIP, COUNTY CLERK Yd COMMISSIONERS' JOURNAL 0810112006 04:10:09 PM 2006-7 11111111111111111111111111111 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 14, Chapter 14. 10, to correct Chapter 14.10.40(A) and Declaring an * ORDINANCE NO. 2006-024 Emergency. WHEREAS, the Board of County Commissioners approved an increase in the fee to be charged for private property claims effective July 1, 2006; and WHEREAS, the language in DCC 14.10.40(A) reflects the fee for private property claims prior to July 1, 2006; and WHEREAS, fees for private property claims may change in the future; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC Title 14, Chapter 14.10.40(A) is amended to read as described in Exhibit "A" attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in s#ikethfough. PAGE 1 OF 2 - ORDINANCE NO. 2006-024 (07/26/06) Section 2. EMERGENCY. This Ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage. Dated this of , 2006 ATTEST: lory~- &"g::'1 Recording Secretary Date of 1St Reading: BOARD OF COUNTY COMMISSIONERS OF DESCHU COUNTY, OREGON DENNIS R. LUKE, CHAIR O l~ day of ahuj~ '2006. Date of 2nd Reading: %!~day of , 2006. Record of Adoption Vote Commissioner Yes No Abstained Excused Dennis R. Luke Bev Clarno Michael M. Daly ✓ Effective date: 2~ day of '2006. ATTEST: Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 2006-024 (07/26/06) BEV CLARNO, VICE CHAIR EXHIBIT "A" Chapter 14.10. PRIVATE PROPERTY COMPENSATION CLAIMS 14.10.010. Purpose and Scope. 14.10.020. Definitions. 14.10.030. Claim. 14.10.040. Claim contents. 14.10.050. Extension. 14.10.060. Reduction In Value Evidence. 14.10.070. Public Comment Process. 14.10.080. Claim eligibility criteria. 14.10.090. Claim Review Procedure. 14.10.100. Board decision. 14.10.110. Effect of decision to discontinue the application of a regulation. 14.10.120. Effect of payment of compensation claim or issuance of waiver. 14.10.130. Recording of decision. 14.10.140. Procedural objections. 14.10.010. Purpose and Scope. A. The purpose of DCC 14.10 is to establish a prompt, open, thorough and consistent process that enables property owners an adequate and fair opportunity to present their claims to the County; preserves and protects limited public funds; authorizes, where appropriate, the modification, removal or waiver of County regulations; and establishes a record of the County's decision capable of judicial review. B. The provisions of DCC 14.10 shall apply to any claim for compensation by an owner of private real property against the County, which claim is made pursuant to an initiative measure approved by the electors in the November 2004 general election and enacting new provisions of ORS Chapter 197, and any law or regulation adopted by the State which amends or modifies such measure (collectively referred to herein as "Measure 37"). C. The provisions of DCC 14.10 establish a process for consideration of Measure 37 claims based on County regulations and do not affect any land use regulations adopted by the State. 14.10.020. Definitions. A. As used in this chapter, words and phrases shall have the same meaning as those contained in Measure 37. B. "Administrator" means the County Administrator or the Administrator's designee. C. "Appraisal" means an examination of and opinion about the fair market value of real property issued by a certified general appraiser, licensed by the Oregon Appraiser Certification and Licensing Board and for the type of property under consideration. Appraisal shall include an opinion of fair market value of real property made by an appraiser in the office of the Deschutes County Assessor. D. "Claimant" means the property owner for which a claim is made pursuant to this Chapter. E. "Claim Eligible" means a finding by the County that the criteria for compensation payment, pursuant to the terms of this Chapter, have been met. F. "Community Development Department" or "CDD" means the County office designated to receive, evaluate and solicit and coordinate public comments concerning Claims submitted under Measure 37. G. "Director" means the Director of the Department of Community Development or the Director's designee. H. "Exempt Regulation" means a regulation that is any of the following: 1. A historically and commonly recognized public nuisance law; 2. A regulation which is required in order to comply with federal law or the terms of a federal grant; 3. A regulation which prohibits or restricts activities for the protection of public health and safety, including fire and life safety and building codes, health and sanitation regulations, solid or hazardous waste regulations and pollution control regulations; 4. A regulation enacted prior to the date of acquisition of the property by the current property Owner or a family member of the current property Owner who owned the PAGE 1 OF 8 OF EXHIBIT "A" - ORDINANCE NO. 2006-024 (7/26/06) EXHIBIT "A" subject property prior to the acquisition or inheritance by the current Owner; 5. A regulation prohibiting the use of property for selling pornography or performing nude dancing; or 6. Any regulation determined or declared by judicial decision or legislative act to be exempt. 1. "Fair Market Value" means the price stated in terms of dollars that a willing buyer would pay for the real property without any obligation to buy from a willing seller without any obligation to sell. "Reduction in fair market value" means the difference in fair market value of the property before and after application or enforcement of the regulation. J. "Federal Requirement" means a statute, code or regulation adopted by the U.S. Congress or any federal agency or state agency delegated to act in the name of a federal agency, which imposes upon the state or local governments or both an obligation to enact or enforce regulations over the use of real property, whether directly or by the terms or conditions of the grant or the receipt of federal funds. K. "Nuisance" means a structure or condition on property arising from any act or omission, which unreasonably interferes with a right common to members of the general public and not necessarily related to the use and enjoyment of land by any person other than the owner of the property that is the situs of the nuisance. L. "Person" means and includes individuals, corporations, associations, firms, partnerships, limited liability companies and joint stock companies. M. "Property Owner" or "Owner of Property" means a person with recorded interest in private, real property, including holders of less than fee simple interests, leasehold owners, and security interest holders. N. "Real Property" means any lot, parcel or tract or any combination thereof, that is owned by a Claimant, including structures built or located on the real property, and any recordable legal, equitable, future or contingent interest in all or any portion of the property. Real Property does not include public property, personal property or easements over, above or below public property. Unless the context otherwise indicates, property shall mean real property. 0. "Waiver" means a license issued by the County which in accordance with its terms modifies, removes, releases or does not apply certain non- exempt County land use regulations from a property determined to be claim eligible, and which upon acceptance by a Claimant releases the County from any further or future claim, action or demand relating to the Claimant's real property based upon Measure 37. Waiver includes all terms and conditions attached thereto by the County. (Ord. 2004-022§ 1, 2004) 14.10.030. Claim. A. Any claim seeking compensation from the County pursuant to Measure 37 shall be made on a claim form complying with the requirements of DCC 14.10.040 and accompanied by the required fee. A claim shall not be deemed filed until and unless the claim form is fully and properly completed with the inclusion of such information as is required by the form and the completed form is actually received at the offices of the Community Development Department. B. Notwithstanding subsection (A) of this section and subsection (A) of section 14.10.040, the Administrator may allow the acceptance and processing of an incomplete claim upon the preliminary determination that the particular claim appears to be claim eligible even in the absence of all of the required data. C. For regulations enacted prior to December 2, 2004 a claim shall be filed no later than two years after December 2, 2004 or the date the County applies such regulation as an approval criteria to an application for land division or development by the property Owner. For regulations enacted after December 2, 2004 a claim shall be filed no later than two years after the enactment of such regulation or the date the owner applies for land division or development approval and the County applies such regulation to the owner's application. PAGE 2 OF 8 OF EXHIBIT "A" - ORDINANCE NO. 2006-024 (7/26/06) EXHIBIT "A" D. The Director is not authorized to settle any claim. Any omission or failure to recite to a Claimant all relevant applicable land use regulations will not constitute a waiver or admission by the County. A decision by the Director to allow the acceptance and processing of an incomplete claim shall not preclude the Director from recommending denial to the Board. (Ord. 2005-018 § 1, 2005; Ord. 2004-022§ 1, 2004) 14.10.040. Claim contents. A claimant shall furnish the following information: A. Fee. A nonrefundable fee of not less than the fee established by resolution of the Board of County Commissioners-500.00 to be paid in advance of acceptance for filing. The fee will be used to cover the County's costs of review and processing. B. Property Owner. Identification of the name, mailing address, street address, and phone number of the person filing the claim for compensation. If the person filing the claim is not the fee title owner of the property, the required information shall be provided with regard to all owners of the property. C. Property Description. A legal description of the property by lot and tax lot number that is the subject of the claim and the common, street address for the property. D. Proof of Ownership. A title report issued within 30 days of the date of the claim and by a property title insurance company authorized to conduct such business with the State of Oregon. Such report shall name all persons with legal, equitable and security interests in the property and the date and instrument showing the time and manner in which such property interest or interests were established. If the property is not in the exclusive fee ownership of the Claimant, then the County may require the Claimant to certify that the Claimant has the consent to proceed with the claim on behalf of all other owners, including co-owners and all security interests in the property. The name and mailing address of all owners other than the Claimant must be provided. The title report must also specify any restrictions on use of the property unrelated to the challenged regulation including, but not limited to, any restrictions established by Covenants, Conditions and Restrictions (CC&Rs), other private restrictions, and other regulations, restrictions or contracts. E. Ownership History. Where the claim concerns application or enforcement of County regulations in effect prior to Claimant's acquisition of the property, Claimant shall provide a title report, in the form of a title history, including a statement of the date(s) when the Claimant and the Claimant's earliest family member first acquired ownership of the property, the names of earliest and each succeeding family member, the dates of each acquisition and disposition of all intervening owners of the property from the earliest family member to that of the Claimant. The Claimant shall also furnish evidence showing the family relationship between and among all prior owners to establish that no gaps when a family member of the Claimant did not own the subject property. F. Identification of Regulation. A copy of each and every County regulation that allegedly restricts the use of the real property and has allegedly caused a reduction in the fair market value of the subject property, including a statement by the Claimant of the date each regulation was first passed, applied or first enforced on the subject property. G. Enforcement of County Regulation. A notice of disposition or other public record showing whether the Claimant has applied, using all applicable procedures, for a permit, for land division and/or for development of the property which is the subj ect of the claim; for amendment or elimination of the regulation in question, or, if not allowed, a variance from its terms; whether enforcement proceedings have occurred with respect to the Claimant's use of the property; whether the Claimant has pursued and exhausted all local appeals available for the development, amendment or enforcement of the regulation(s) that is alleged to have caused a reduction in the fair market value of the subject property requiring compensation; and the results or final disposition of all such procedures. In the absence of any records of the foregoing the Claimant shall demonstrate that submitting an PAGE 3 OF 8 OF EXHIBIT "A" - ORDINANCE NO. 2006-024 (7/26/06) EXHIBIT "A" application for land division and/or development of the property subject to the regulation(s) would be futile, because the County would deny such application. H. Reduction in Value. Claimant shall provide written evidence of the amount of the claim in dollars based on the alleged reduction in the fair market value of the property resulting from the enforcement of the County's non-exempt land use regulation. The amount of the alleged reduction in the fair market value of the property shall be indicated by showing the difference in the fair market value of the property, determined before and after application or enforcement of the County's non- exempt land use regulation(s). Appraisals must meet the uniform standards of Professional Appraisal Practice (USPAP) and be performed by an appraiser who meets the Competency Rule of USPAP. The appraisal must be in a self- contained format and must be "complete," not "limited." The appraisal shall address the specific limitations set forth in DCC 14.10.060. Any reduction in value evidence shall demonstrate that the desired use is feasible on the subject property. This includes, at least, evidence that domestic water, sanitary sewer disposal and road access are feasible for the desired use. 1. Effect of County Waiver. A statement explaining how the County's enforcement of the regulation restricts the use of Claimant's property. The Claimant must explain the effect that County's waiver of enforcement or application of the regulation(s) on the property would have on the Owner's potential development of the property, stating the greatest degree of development that would be sought if the identified regulation(s) was released from the property. The Claimant shall also furnish a statement of the greatest degree of development that would be sought if the identified regulation(s) was not released from the property. J. Binding Effect of Claim submittal. A statement by all Owners of the property that all claims that may be brought under DCC 14.10 which are ripe at the time of filing the claim have been brought or are irrevocably waived by the Owner(s) or will be joined in a single legal proceeding if the claim is denied by the County. K. Signature. The claim form shall be signed by all Owners of the property. (Ord. 2005-018 § 1, 2005; Ord. 2004-022§ 1, 2004) 14.10.050. Extension. If after filing a claim, the Claimant elects to apply to the County for a permit, land division or development of the subject property in order to establish that the result of such application would be denial by the County and thus demonstrate application or enforcement of a non-exempt County land use regulation to the subject property, then the County will leave the Claimant's claim under this chapter open, so as to allow the Claimant an opportunity to resume the claim. (Ord. 2005 § 1, 2005; Ord. 2004-022 § 1, 2004) 14.10.060. Reduction in Value Evidence. The preferred evidence of reduction in value is an appraisal as defined in 14.10.020 C. Any evidence offered to support a claim for compensation pursuant to the terms of this chapter shall be subject to the following special requirements: A. The appraisal must expressly note all existing infrastructure limitations and value the property without an assumption that the infrastructure will be improved at governmental expense or through discretionary governmental action. Infrastructure includes but is not limited to water, sewer, vehicle access, law enforcement, fire protection and other necessary public services and utilities. B. The appraisal's consideration of the reduction in fair market value shall be limited to the difference in the fair market value of the property before and after the application of the non-exempt County land use regulation(s). The analysis shall distinguish the effect or damage that may result to the property based upon laws or regulations that are exempt regulations or are not County regulations. The analysis shall not include consideration of any other damage that the regulation may have on any other property owned by the Claimant. C. The appraisal shall specifically identify the effect on market value from application or enforcement of County regulations, of exempt PAGE 4 OF 8 OF EXHIBIT "A" - ORDINANCE NO. 2006-024 (7/26/06) EXHIBIT "A" regulations and of any non-county regulations, such as State and federal regulations. D. The appraisal must expressly consider the market effect of Measure 37 on the availability of other real property including the extent to which the supply of such other real property is or will be increased due to the repeal, waiver or non-enforcement of nonexempt County land use resulting from Measure 37. E. Written evidence of reduction in value must clearly state: 1. The assumptions related to the regulation(s) restricting the use(s) of the property; 2. The dates of valuation; 3. The assumptions related to uses allowed on the property if the regulation had not been enacted, enforced, or applied; 4. Any statistical, economic, econometric, or other calculations, models, or methods used to determine reduction in value; 5. The comparable properties evaluated; and 6. The methodology used by the appraiser to determine the reduction in fair market value. 4. The date and location by which written comments must be received; and 5. That a copy of the claim, all documents and evidence submitted by or on behalf of the Claim and the applicable criteria are available for inspection at no cost and will be provided at reasonable cost. B. Failure of the Director to give notice or the failure of any person to receive notice as provided in this section shall not invalidate any action of the County under this chapter. C. Any person may submit written comments on the claim. D. The Administrator shall consider written or email comments received before the Administrator reports to the Board and shall forward such comments to the Board. (Ord. 2004-022 § 1, 2004) 14.10.080. Claim eligibility criteria. A claim for compensation shall be deemed claim eligible only if all of the following criteria have been met: The name of the preparer and their A. qualifications for preparing such evidence. F. Nothing contained herein shall be construed as prohibiting the County from considering an appraisal prepared by an appraiser on staff of the Deschutes County Assessor. (Ord. 2005-018 § 1, 2005; Ord. 2004-022 § 1, 2004) 14.10.070. Public Comment Process A. The Director shall send by regular first class mail notice of the claim within 10 days of submittal of a claim to the owners of property within 250 feet of the subject property. For purposes of identifying addressees, the County shall use the property ownership records of the County Assessor. Such notice shall include the following information. 1. The nature of the claim and the nature of the proposed use(s) that could be authorized; 2. The eligibility criteria set forth in DCC 14.10.080. 3. The street address or easily understood geographical reference to the subject property; The Claimant is the property owner and the subject property has been owned by the Claimant or by a family member of the Claimant continuously since before adoption or the effective date of the county land use regulation which the Claimant alleges to have caused a reduction in the value of Claimant's property. If the regulation was adopted in any fashion other than an ordinance, the Claimant must establish that he/she was the Owner or a related family member Owner of the property in question on the date that the regulation was first eligible for administrative or judicial enforcement in the County. B. It must be determined that the County regulation in question is not an exempt regulation. C. The cited regulation(s) is a qualifying land use regulation entitling the property owner to compensation or waiver of the regulation on use of the property under Measure 37. D. The provisions of Measure 37 and/or any law or regulation adopted by the State which modifies PAGE 5 OF 8 OF EXHIBIT "A" - ORDINANCE NO. 2006-024 (7/26/06) EXHIBIT "A" or implements such measure are in full lawful effect. (Ord. 2005-018 §1, 2005; Ord. 2004-022 § 1, 2004) 14.10.090. Claim Review Procedure. A. The Administrator shall have the duty to analyze claims for compensation and make a recommendation to the Board on the disposition of the claim. The Administrator may, in the Administrator's discretion, retain the services of an appraiser or any other qualified expert to review or critique appraisals and other information and documentation provided by the Claimant and/or to appraise the property and the claim for compensation for the purposes of determining whether or not the cited regulation has had the effect of reducing the fair market value of the property and for other purposes relevant to the claim. Nothing contained in this chapter shall be construed as preventing the County Assessor or its appraisal staff from analyzing and furnishing an opinion as to reduction in fair market value of property resulting from enforcement of one or more County land use regulations. The Adminis- trator's recommendation shall advise whether or not the claim has been determined to be claim eligible and may include a recommendation concerning disposition of the claim. B. Upon the completion of the recommendation the Administrator shall submit the same to the Board, together with written public comments received in writing or via e-mail. C. The Claimant or any person entitled to notice in accordance with DCC 14.10.070 may present oral comments and rebut evidence in the record, including the Administrator's report at the Board meeting in which the Administrator's recommendation is presented. A public hearing shall not be required. D. The Board shall consider the matter at a regular or special meeting for which notice is given as required by law. (Ord. 2005-018 § 1, 2005; Ord. 2004-022 § 1, 2004) 14.10.100. Board decision. A. The Board shall review the Administrator's recommendation and any testimony, written comments or other documents submitted in support of or opposed to the claim and determine whether or not the claim is, in fact, claim eligible. B. Prior to making a decision, members of the Board shall not communicate directly or indirectly with any party or the party's representative in connection with any issue involving the pending claim. Should such communication - whether written or oral - occur, the member shall publicly announce for the record the substance of such communication and permit any party the right to rebut the substance of the ex parte communication during the Board's meeting. C. Upon a determination that the claim is claim eligible, the Board shall do the following: 1. Pursuant to Measure 37, and notwithstanding any other law, rule, ordinance, resolution, goals, or other enforceable enactment of the County, and notwithstanding any other procedure for release, exception, or otherwise in this Code, the Board is authorized by written order to modify, remove, release or not apply any County land use regulation to the property which is the subject of the claim when the Board, in its discretion, elects to do so rather than paying compensation to the property. 2. The Board shall either declare that: a. Compensation is due to the Claimant in an amount determined in the Board's decision; or b. The County will, as of a date specified in the resolution, discontinue applying the challenged regulation(s) to allow the Claimant to use the property for a use permitted at the time the Claimant acquired the property. D. Where more than one regulation is being challenged, the Board may provide for a combination of remedies listed in this section. E. The Board's decision shall be based upon consideration of whether the public interest would be better served by compensating the Claimant, depending upon available resources for payment thereof or by discontinuing to apply the challenged regulation(s) to the use PAGE 6 OF 8 OF EXHIBIT "A" - ORDINANCE NO. 2006-024 (7/26/06) EXHIBIT "A" permitted at the time the Claimant acquired the property. F. If the Board determines that the claim is not claim eligible, it shall adopt an order, including findings of fact and conclusions to explain the basis for its determination. G. Based upon the Board's determination of claim eligibility, it shall take one of the following actions: 1. Deny the demand based on, but not limited to, any one or more of the following findings: a. The evidence is not sufficient to show that the County's non-exempt land use regulation restricts the Claimant's use of the property; b. The evidence is not sufficient to show that the fair market value of the property is reduced by the enactment, enforcement or application of the County's non-exempt land use regulation; c. The claim was not timely filed; d. The Claimant failed to comply with the requirements for making a demand as set forth in this chapter; e. The Claimant is not an Owner within the meaning of Measure 37 or the property was not owned by a family member if that is required for compensation, or the Claimant was not an owner at the time the land use regulation was first enacted, enforced or applied; f. The challenged land use regulation is an exempt regulation; g. The land use regulation in question is not an enactment of the County; h. The county has not taken final action to enact, enforce or apply the land use regulation to the property or that filing an application for a use alleged by the Claimant to be restricted by the County's land use regulation in a manner which reduces the value of such property would not be futile; i. The evidence is not sufficient to demonstrate that use proposed by the Claimant is feasible, even if the land use regulations were not applied due to exempt regulations, infrastructure limitations, or other factors. j. The Claimant is not entitled to compensation under Measure 37 for a reason other than those provided herein. 2. Award compensation, either in the amount requested, or in some other amount supported by substantial evidence in the record, subject to the availability and appropriation of funds for that purpose. Payment may be made jointly to owners of the property or, as appropriate, to the Circuit Court for determination of proper distribution of such proceeds. 3. Issue a waiver of the County land use regulation to allow the Claimant to apply for a use of the property permitted at the time the Claimant acquired the property. Provided however, that nothing contained herein shall be construed as allowing a use of the subject property which was prohibited or restricted by any land use regulation in effect at the time the Claimant acquired the property. 4. Take such other actions as the Board deems appropriate consistent with Measure 37 and this Chapter. (Ord. 2005-018 § 1, 2005; Ord. 2004-022 § 1, 2004) 14.10.110. Effect of a decision to discontinue the application of a regulation. A. No compensation shall be due pursuant to the provisions of Measure 37 if a decision is made to modify, remove or not apply a county regulation(s) to a Claimant's property within 180 days of the filing of a completed claim for compensation. A decision to modify, remove or not apply one or more county regulations to a given property is not equivalent to approval of a use or development of that property, which may require separate land use development approval, or the processing of a permit application. B. Any improvement or development that occurs based in whole or in part on the Board's decision that the claim is claim eligible under this chapter, shall be entitled only to the rights and privileges which Measure 37 provides for a Claimant which establishes a valid claim under Measure 37. Provided however, that nothing contained herein shall be construed as allowing PAGE 7 OF 8 OF EXHIBIT "A" - ORDINANCE NO. 2006-024 (7/26/06) EXHIBIT "A" a use of the subject property which was prohibited or restricted by any land use regulation in effect at the time the Claimant acquired the property or any regulation which is not among those regulations included in the waiver. (Ord. 2004-022 § 1, 2004) 14.10.120. Effect of payment of a compensation claim or issuance of waiver. The Claimant's acceptance of County's payment of compensation or waiver shall forever satisfy the claim of the Owner, and subsequent Owners for the partial taking caused by the regulation(s) in question and/or its present or future enforcement. (Ord. 2004-022 § 1, 2004) 14.10.130. Recording of decision. The payment of a compensation claim or the issuance of a waiver and the satisfaction of all present and subsequent claims shall be recorded as a covenant running with the land. (Ord. 2005-018 § 1, 2005; Ord. 2004-022 § 1, 2004) 14.10.140. Procedural objections. Any party who objects to the procedure followed in any particular matter, including bias, conflict of interest, and undisclosed ex parte contacts, must make a procedural objection prior to the County's final decision. Procedural objections may be raised at any time prior to a final decision, after which they are deemed waived. In making a procedural objection, the objecting party must identify the procedural requirement that was not properly followed and identify how the alleged procedural error harmed that person's substantial rights. (Ord. 2004-022 § 1, 2004) PAGE 8 OF 8 OF EXHIBIT "A" - ORDINANCE NO. 2006-024 (7/26/06)