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ENB-7.02 - Measure 37 Claims - Clarify Review Process

MEASURE 37 CLAIMS - CLARIFY REVIEW PROCESS
Binding City Policy
BCP-ENB-7.02

 
PURPOSE
 
WHEREAS, on November 2, 2004, the voters of the State of Oregon approved Ballot Measure 37 which adds provisions to Oregon Revised Statutes Chapter 197 and requires, under certain circumstances, local governments to either pay a landowner or remove, modify or not apply local land use regulations when the owner demonstrates that the regulations restrict the use of the owner’s property and have the effect of reducing its value; and
 
WHEREAS, Ballot Measure 37 provides that a city may adopt or apply procedures for processing a claim for compensation under the Measure; and
 
WHEREAS, on December 2, 2004, the City Council amended the city code and adopted a revised Chapter 5.75, which provides a framework review process for Measure 37 claims;
 
WHEREAS, at the time it adopted Chapter 5.75, the City Council reserved for future discussion and determination several issues concerning the processing of claims, including when and how to give notice of each claim; and
 
WHEREAS, the City’s adopted land use regulations carefully balance competing interests, including the interests of property owners and neighborhood, business and environmental interests; and
 
WHEREAS, the City Council desires to implement Measure 37 in a reasonable way that recognizes the rights granted to claimants by the measure and the interests of neighbors who may be affected by Measure 37 claims filed against the City; and
 
WHEREAS, to implement Measure 37 in a fair and balanced way, the Council desires to provide opportunities for neighboring property owners and affected neighborhood and business associations to provide comment and factual information at appropriate times on each claim; and
 
WHEREAS, the Oregon Attorney General has concluded that a state agency decision to resolve a Measure 37 claim by removing, modifying or not applying (i.e., waiving) challenged regulations is personal to the owner filing the claim and is not transferable to any subsequent purchaser of the property that is the subject of the claim; and
 
WHEREAS, the City Council agrees with the Attorney General’s analysis and intends to follow the Attorney General’s advice on the nontransferability of waivers as the Council resolves Measure 37 claims filed against the City; and
 
WHEREAS, the City Council’s resolution of each Measure 37 claim will consider the analysis and information supplied by the claimant, as well as the analysis and information supplied by the City’s Program Manager, and comment received from others during the review process;
 
WHEREAS, in preparing a recommendation to the Council, the Program Manager may need to seek the assistance of expert professionals, including appraisers and title companies, to supplement or verify information supplied by the claimant and the Program Manager should have the budgetary and contract resources to be able to seek this assistance in a timely way as necessary.

 
POLICY
 
NOW, THEREFORE, BE IT RESOLVED, the Program Manager is directed to provide written notice of a Measure 37 claim to all property owners within 400 feet of the property that is the subject of the claim and to the neighborhood association, District Coalition, Citywide Land Use Group and business association whose boundaries include the property subject to the claim; and
 
BE IT FURTHER RESOLVED, the Program Manager is directed to provide written notice described above by regular mail at two points during the claim review process: sent within 5 business days of the time a submitted Measure 37 claim is determined to be complete and 30 days before the City Council hearing on the claim; and
 
BE IT FURTHER RESOLVED, the Program Manager shall work with the Citywide Land Use Group to establish a Measure 37 committee, which will include representatives from various community stakeholder groups. In collaboration with City staff, this committee will develop and implement methods for informing stakeholders about the Measure and the City’s implementation process and facilitating citizen input into the claim review process. The committee will study the City’s claims review process and return to the Council in six months with a written report and recommendations for process and policy improvements.
 
BE IT FURTHER RESOLVED, the Program Manager is directed to present any recommendation to resolve a Measure 37 claim by removing, modifying or not applying City land use regulations as personal to the claimant and nontransferable to any subsequent owner; and
 
BE IT FURTHER RESOLVED, the Office of Management and Finance is directed to transfer $50,000 from General Fund Contingency to the Mayor’s office FY 2004-05 appropriation (AU 195) upon City Council approval of funding. Appropriation will provide funding for professional, technical and expert contracts with prequalified consultant teams for real estate appraisal, economic evaluation and title information as the Program Manager determines is necessary to evaluate each Measure 37 claim; and
 
BE IT FURTHER RESOLVED, the Program Manager is directed to return to the City Council after working with the Bureau of Development Services, the City Attorney, the Bureau of Planning and the Citywide Land Use Group, to develop a process by which settlement of certain valid Measure 37 claims may be pursued through proactive negotiation between claimants and the City. The purpose of negotiation should be to mitigate legal costs, claim liabilities, and impacts associated with waivers of City land use regulations where property owners are interested in an outcome other than compensation of their claim.
 
In developing this draft policy for City Council consideration staff should consider the following:
a. Providing opportunities for addressing and resolving property owner issues outside of the claims process, including through existing permit and land use processes;
 
b. Once established, in accordance with Council policy guidance regarding exemptions, compensation and independent analysis of ownership or market value, negotiation should be offered to claimants with a valid claim at the earliest possible stage of the review process. If possible, this process should include voluntary suspension of the 180-day timeline given to municipalities to process Measure 37 claims while the parties are pursuing a negotiated resolution of the claim;
 
c. Notification of the City Council hearing to consider the proposed resolution should be sent to all property owners within 400 feet of the site; and;
 
d. The Program Manager should report back to the City Council with a proposal consistent with these provisions not later than May 20, 2005.
BE IT FURTHER RESOLVED, this resolution is binding City policy.

 
HISTORY
Resolution No. 36304 adopted by Council March 30, 2005.

Table of Contents
ENB-7.02 - Measure 37 Claims - Clarify Review Process
ENB-7.03 - Measure 37 Claims - Property Owner Waiver