Chapter 5.75 Claims Under ORS Chapter 195 and 197

City Code Chapter

(Chapter replaced by Ordinance 181640, effective February 28, 2008.)

5.75.010 Purpose.

  1. The purpose of this Chapter is to establish a procedure by which owners of private real property located within the City of Portland may file claims pursuant to Chapters 195 and 197 of the Oregon Revised Statutes as amended by Ballot Measure 49 (November 6, 2007) (referred to in this chapter as "Measure 49") and to provide for consideration of claims by the City Council.

5.75.020 Definitions.

  1. A.  Appraisal.  A written statement prepared by a person certified under ORS chapter 674 or a person registered under ORS chapter 308 that complies with the Uniform Standards of Professional Appraisal Practice, as authorized by the Financial Institution Reform, Recovery and Enforcement Act of 1989.
  2. B.  Approved Measure 37 Claim.  A claim filed under ORS 197.352 and approved by the City Council before December 6, 2007.
  3. C.  Department.  The Oregon Department of Land Conservation and Development.
  4. D.  Exempt Land Use Regulation.  A land use regulation that:
    1. 1.  Restricts or prohibits activities commonly and historically recognized as public nuisances under common law;
    2. 2.  Restricts or prohibits activities for the protection of public health and safety;
    3. 3.  Is required in order to comply with federal law;
    4. 4.  Restricts or prohibits the use of property for the purpose of selling pornography or performing nude dancing; or
  5. E.  Land Use Regulation.  A provision of the City of Portland comprehensive plan, zoning ordinance or land division ordinance that restricts the residential use of private real property zoned for residential use.
  6. F.  Measure 37.  A ballot measure adopted by the voters of the State of Oregon and effective on November 6, 2004 that was codified as Oregon Revised Statutes (ORS) 197.352 and that required, under certain circumstances, the payment of just compensation to landowners if a government land use regulation restricted the use or property and reduced its value, or, in the alternative, authorized the government to remove, modify, or not apply one or more challenged regulations.
  7. G.  Owner.  A person who is:
    1. 1.  The owner of fee title to the property as shown in the deed records of the county where the property is located;
    2. 2.  The purchaser under a land sale contract, if there is a recorded land sale contract in force for the property; or
    3. 3.  If the property is owned by the trustee of a revocable trust, the settlor of a revocable trust, except that when the trust becomes irrevocable only the trustee is the owner.
  8. H.  Program Manager.  The person authorized to administer and oversee the processing of claims under this Chapter.
  9. I.  Protection of Public Health and Safety.  A law, rule, ordinance, order, policy or permit or other governmental authorization that restricts a use of property in order to reduce the risk or consequence of fire, earthquake, landslide, flood, storm, pollution, disease, crime or other natural or human disaster or threat to persons or property including, but not limited to, building and fire codes, health and sanitation regulations, solid or hazardous waste regulations and pollution control regulations.
  10. J.  Reduction in Value.  A decrease in 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 enactment, plus interest, adjusted by any ad valorem property taxes not paid as a result of any special assessment of the property under ORS 308A.050 to 308A.128, 321.257 to 321.390, 321.754 or 321.805 to 321.855, plus interest, offset by any severance taxes paid by the claimant and by any recapture of potential additional tax liability that the claimant has paid or will pay for the property if the property is disqualified from special assessment under ORS 308A.703.
  11. K.  Waiver.  Action by the Portland City Council to modify, remove or not apply one or more land use regulations found to have caused a reduction in value.

5.75.030 Filing an Amended Claim.

  1. A.  A person may amend a Measure 37 claim that was filed with the City of Portland on or before June 28, 2007.
  2. B.  To qualify for compensation or waiver, a person filing an amended claim under this section must establish that:
    1. 1.  The claimant is an owner of the property;
    2. 2.  All owners of the property have consented in writing to the filing of the claim;
    3. 3.  The property is located, in whole or in part, within the City of Portland;
    4. 4.  On the claimant’s acquisition date, the claimant lawfully was permitted to establish at least the number of single family dwellings on the property that are authorized under Measure 49;
    5. 5.  The property is zoned for residential use;
    6. 6.  A land use regulation prohibits the establishment of a single-family dwelling;
    7. 7.  The establishment of a single-family dwelling is not prohibited by a land use regulation described in ORS 197.352(3);
    8. 8.  The land use regulation described in paragraph 6 of this section was enacted after the date the property, or any portion of it, was brought into the Metro Urban Growth Boundary;
    9. 9.  The land use regulation described in paragraph 6 of this section was enacted after the date the property, or any portion of it, was annexed to the City of Portland;
    10. 10.  The enactment of the land use regulation caused a reduction in the fair market value of the property; and
    11. 11.  The highest and best use of the property was residential use at the time the land use regulation was enacted.
  3. C.  A person filing an amended Measure 37 claim under this section must submit the following information:
    1. 1.  The name, street address and telephone number of the claimant and all other persons and entities with an interest in the property;
    2. 2.  A title report issued no more than 30 days prior to submission of the claim that shows the claimant’s current real property interest in the property, the deed registry of the instrument by which the claimant acquired the property, the location and street address and township, range, section and tax lot number(s) of the property, and the date on which the owner acquired the property interest;
    3. 3.  A written statement signed by all owners of the property, or any interest in the property, consenting to the filing of the claim;
    4. 4.  A reference to any and all specific, existing land use regulations the claimant believes reduced the value of the property and a description of the manner in which the regulation prohibits the residential use of the property;
    5. 5.  A copy of the city land use regulations that applied to the property at the time the challenged land use regulations became applicable to, or were enforced against, the property;
    6. 6.  An appraisal showing the fair market value of the property one year before the enactment of the land use regulation and one year after enactment, and expressly determining the highest and best use of the property at the time the land use regulation was enacted;
    7. 7.  A description of the claimant’s proposed use of the property if the Council chooses to waive a land use regulation instead of paying compensation;
    8. 8.  If the property is or has been enrolled in one or more of the special assessment programs listed in Section 5.75.020 J., information regarding tax amounts not paid as a result of the program or programs; and
    9. 9.  A statement whether the claimant filed a claim with other public entities on or before June 28, 2007, involving the same property and a copy of any decision made by the entity on the claim.
  4. D.  The Program Manager shall notify all claimants who filed claims on or before June 28, 2007, and whose claims were not decided by the City Council prior to December 6, 2007, that they may amend their claims under this section and shall provide a form for amended claims.  A claimant must submit an amended claim under this section to the Program Manager within 120 days after the date of notice under this paragraph or the claimant is not entitled to relief.

5.75.040 Review of Amended Claim by Program Manager.

  1. A.  The Program Manager shall review a claim filed under Section 5.75.030 to ensure that it provides the information required by Subsection 5.75.030 C.  If the Program Manager determines that the claim is incomplete, the Program Manager shall, within 21 days after the filing of the claim, provide written notice of the incompleteness to the claimant.  If the Program Manager does not notify the owner that the claim is incomplete within the prescribed 21 days, the claim shall be considered complete on the date it was filed with the City of Portland.
  2. B.  The Program Manager shall review the claim for compliance with the requirements of Subsection 5.75.030 B. and prepare a tentative determination of compliance not later than 90 days after the filing of a complete claim.  The Program Manager shall provide written notice to the claimant, the Department, and owners of property within 200 feet of the claim property of the tentative recommendation as to whether the claimant qualifies for the number of single-family dwellings the City of Portland proposes to authorize.  The written notice shall inform recipients they have 15 days to submit evidence or argument to the Program Manager in response to the tentative recommendation. The Program Manager shall make a final recommendation on the claim within 135 days of the date the claimant notifies the Program Manager of the claimant’s intent to continue the claim.
  3. C.  The Program Manager's recommendation to approve or deny a claim under Subsection B of this section shall be in writing and shall be supported by a brief explanation for the basis of the recommendation.

5.75.050 Hearing on Amended Claim by City Council.

  1. A.  The Auditor shall schedule each amended claim for consideration by City Council at a regularly scheduled City Council meeting. After considering the report and final recommendation by the Program Manager and any other material the Council determines is relevant, the Council shall make its final determination and adopt a final decision and order that explains the determination.
  2. B.  The City Council shall take final action within 180 days of receipt of a claim.
  3. C.  The City Council's decision shall be in writing and shall be supported by a brief explanation of the basis for the decision.
  4. D.  The Program Manager shall provide notice of the date, time and location of the public hearing at least 30 days before the hearing to the claimant, the Department, and owners of property within 200 feet of the claim property.

5.75.060 Filing a New Claim.

  1. A.  A person may file a claim after June 28, 2007, and will qualify for compensation or waiver, if:
    1. 1.  The claimant is an owner of the property and all owners of the property have consented in writing to filing of the claim;
    2. 2.  The claimant’s desired use of the property is a residential use;
    3. 3.  The claimant’s desired use of the property is restricted by a land use regulation enacted after January 1, 2007;
    4. 4.  The enactment of the land use regulation has reduced the fair market value of the property; and
    5. 5.  The highest and best use of the property was residential use at the time the land use regulation was enacted.
  2. B.  A person filing a claim under this section must submit the fee for processing the claim prescribed in Section 5.75.090 and the following information:
    1. 1.  The name, street address and telephone number of the claimant and all other owners of the property;
    2. 2.  A title report issued no more than 30 days prior to submission of the claim that shows the claimant’s current real property interest in the property; the deed registry of the instrument by which the claimant acquired the property; the location and street address and township, range, section and tax lot number(s) of the property; the date on which the owner acquired the property interest; and any exceptions and encumbrances to title;
    3. 3.  A written statement signed by all owners of the property consenting to the filing of the claim;
    4. 4.  A citation to the land use regulation the claimant believes is restricting the claimant’s desired use of the property;
    5. 5.  A description of the specific single-family residential use of the property that the claimant desires to carry out, but cannot because of the land use regulations;
    6. 6.  An appraisal showing the fair market value of the property one year before the enactment of the land use regulation and one year after enactment, and expressly determining the highest and best use of the property at the time the land use regulation was enacted;
    7. 7.  If the property is or has been enrolled in one or more of the special assessment programs listed in Measure 49, Section 9(6), information regarding taxes not paid as a result of the program or programs; and
    8. 8.  A statement whether the claimant filed a claim with other public entities on or before June 28, 2007, involving the same property and a copy of any decision made by the entity on the claim.
  3. C.  A person filing a claim under this section must file the claim within five years after the challenged land use regulation was enacted.

5.75.070 Review of New Claim by Program Manager.

  1. A.  The Program Manager shall review the claim to ensure that it provides the information required by Section 5.75.060.  If the Program Manager determines that the claim is incomplete, the Program Manager shall, within 60 days after the filing of the claim, provide written notice of the incompleteness to the claimant.  If the Program Manager does not notify the owner that the claim is incomplete within the prescribed 60 days, the claim shall be considered complete on the date it was filed with the Program Manager.
  2. B.  A claim filed under this section shall not be considered complete until the claimant has submitted the information required by this section.  If the claimant fails to submit a complete claim within 60 days after the notice prescribed in Subsection A, the claim shall be deemed withdrawn.
  3. C.  The Program Manager shall conduct a preliminary review of a claim to determine whether it satisfies all of the following prerequisites for full evaluation of the claim:
    1. 1.  The property lies within the City of Portland’s jurisdictional boundary;
    2. 2.  The land use regulation that is the basis for the claim is a provision of a city land use regulation; and
    3. 3.  The claimant acquired an interest in the property before the effective date of the land use regulation and has continued to have an interest in the property since the effective date.
  4. D.  If the claim fails to satisfy one or more of the prerequisites in subsection C of this section, the Program Manager shall prepare a report to that effect and recommend to the City Council that it dismiss the claim following a public hearing under Section 5.75.080.
  5. E.  If the claim satisfies each of the prerequisites in Subsection C of this section, the Program Manager shall complete the review of the claim to determine whether it satisfies the criteria in Section 5.75.060.
  6. F.  The Program Manager may commission an appraisal or direct other research in aid of the determination whether a claim meets the requirements of ORS 197.352 and to assist in the development of a recommendation regarding appropriate relief for a valid claim.
  7. G.  The Program Manager shall prepare a written report with the determinations required by Subsection E of this section and the reasoning to support the determination.  The report shall include a recommendation to the City Council on the validity of the claim and, if valid, whether the City of Portland should compensate the claimant for the reduction of value or waive the regulation.  If the Program Manager recommends compensation or waiver, the report shall recommend any conditions that should be placed upon the compensation or waiver to help achieve the purpose of this chapter and the policies of the City of Portland’s comprehensive plan.  If the Program Manager recommends waiver, the report shall recommend the specific number of single-family dwellings the City of Portland should authorize commensurate to the reduction in fair market value of the property.
  8. H.  The Program Manager shall provide the report to the City Council, the claimant, Metro, and other persons who request a copy. 

5.75.080 Hearing on New Claim by City Council.

  1. A.  The City Council shall hold a public hearing on a claim prior to its final determination.  The Program Manager shall schedule the hearing for a date within 180 days after the filing of a completed claim.
  2. B.  The Program Manager shall provide notice of the date, time and location of the public hearing at least 30 days before the hearing to the claimant and owners of the subject property, owners and occupants of property within 100 feet of the subject property, the Department, Metro, and Multnomah County.  The notice shall indicate that:
    1. 1.  A copy of the Program Manager’s recommendation is available upon request;
    2. 2.  Judicial review of the City of Portland’s final determination is limited to the written evidence and arguments submitted to the City of Portland prior to or at the public hearing; and
    3. 3.  Judicial review is available only for issues that are raised with sufficient specificity to afford the City of Portland an opportunity to respond in its final determination.
  3. D.  After the close of the public hearing the City Council shall makes its final determination on the claim and enter an order with findings of fact and conclusions of law, based upon the record made before the City of Portland, that explain the determination.  The Program Manager shall mail a copy of the final determination to the claimant, Multnomah County, and any person who submitted written or oral testimony prior to the close of the public hearing.
  4. E.  The City Council will make its final determination within 180 days of the date the claim is complete.

5.75.090 Claim Processing Fee

  1. A claimant shall pay a $250 fee to file a claim under Sections 5.75.030 and 5.75.060 of this Chapter. A claim will not be considered complete until the fee is paid. For any claims submitted on or after December 2, 2004 for which a fee was not paid at the time of claim submittal, the Program Manager may bill the owner for the fee at any time during the claim review process and prior to a final decision on the claim. 

5.75.100 Determination of Common Law Vested Right.

  1. A.  A person with an approved Measure 37 claim may apply for a determination that the person has a common law vested right to continue and complete a use or development allowed by an approved Measure 37 claim consistent with Measure 49.
  2. B.  An applicant seeking to establish a common law vested right for an approved Measure 37 claim must submit the following information:
    1. 1.  The name, mailing address, and telephone number of the applicant.
    2. 2.  A legal description and tax lot numbers of the subject property as well as a street address for the property, if any.
    3. 3.  A copy of the approved Measure 37 claim decision from the City of Portland and, if appropriate, the State of Oregon.
    4. 4.  Additional information sufficient to address each of the factors listed in Subsection C of this Section.
  3. C.  The factors to be considered by the Program Manager and the City Council in determining whether the applicant has a common law vested right to continue and complete a use or development allowed by an approved Measure 37 claim are:
    1. 1.  The amount of money spent on developing the use in relation to the total cost of establishing the use.
    2. 2.  The good faith of the property owner.
    3. 3.  Whether the property owner had notice of the proposed change in law before beginning development.
    4. 4.  Whether any improvements could be used for other allowed uses.
    5. 5.  The kind of use, and the location and cost of the development.
    6. 6.  Whether the property owner’s acts are more than mere contemplated use or preparation, such as the leveling of land, boring test holes, or preliminary negotiations with contractors or architects.
    7. 7.  Other relevant factors.
  4. D.  The Program Manager shall review the application to ensure that it provides the information required by Subsections B and C of this Section.  If the Program Manager determines that the application is incomplete, the Program Manager shall, within 30 days after the filing of the application, provide written notice of the incompleteness to the applicant.  If the applicant fails to respond or submit the missing information within 30 days of the date of the Program Manager’s notice, the application shall be considered complete on the date it was filed with the City of Portland.
  5. E.  The Program Manager shall prepare a written report with the determinations required by Subsections B and C of this section and the reasoning to support the determination.  The report shall include a recommendation to the City Council on whether the applicant has established a common law vested right to continue and complete a use or development allowed by an approved Measure 37 claim.
  6. F.  The Program Manager shall provide the report to the City Council, the claimant, Metro, and other persons who request a copy. 

5.75.110 Hearing on a Common Law Vested Right By City Council.

  1. A.  The City Council shall hold a public hearing on an application for a common law vested right to continue and complete a use or development allowed by an approved Measure 37 claim prior to its final determination.  The Program Manager shall schedule the hearing for a date within 90 days after the filing of a completed application.
  2. B.  The Program Manager shall provide notice of the date, time and location of the public hearing at least 30 days before the hearing to the applicant and owners of the subject property, owners and occupants of property within 100 feet of the subject property, and the Department.  The notice shall indicate that:
    1. 1.  A copy of the Program Manager’s recommendation is available upon request;
    2. 2.  Judicial review of the City of Portland’s final determination is limited to the written evidence and arguments submitted to the City of Portland prior to or at the public hearing; and
    3. 3.  Judicial review is available only for issues that are raised with sufficient specificity to afford the City of Portland an opportunity to respond in its final determination.
  3. C.  After the close of the public hearing the City Council shall make its final determination on the application and enter an order with findings of fact and conclusions of law, based upon the record made before the City of Portland, that explain the determination.  The Program Manager shall mail a copy of the final determination to the claimant, the Department, and any person who submitted written or oral testimony prior to the close of the public hearing.
  4. D.  The City Council will make its final determination within 120 days of the date the claim is complete.

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