74th OREGON LEGISLATIVE ASSEMBLY-…

                                 74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session



                                              House Bill 3540
     Sponsored by Representative MACPHERSON, Senator PROZANSKI


                                                             SUMMARY
     The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject
     to consideration by the Legislative Assembly. It is an editors brief statement of the essential features of the
     measure as introduced.

          Conforms Ballot Measure 37 (2004) to legislative form and style.
          Declares emergency, effective on passage.

 1                                                   A BILL FOR AN ACT
 2   Relating to compensation for loss of value of private real property resulting from land use regu-
 3        lation; creating new provisions; amending ORS 197.352; and declaring an emergency.
 4   Be It Enacted by the People of the State of Oregon:
 5        SECTION 1. ORS 197.352 is amended to read:
 6        197.352. [The following provisions are added to and made a part of ORS chapter 197:]
 7        (1) If a public entity enacts or enforces a new land use regulation or enforces a land use regu-
 8   lation enacted prior to December 2, 2004, that restricts the use of private real property or of any
 9   interest therein and has the effect of reducing the fair market value of the property[,] or of any
10   interest therein, then the owner of the property shall be paid just compensation.
11        (2) Just compensation [shall be] is equal to the reduction in the fair market value of the affected
12   property interest resulting from enactment or enforcement of the land use regulation as of the date
13   the owner makes a written demand for compensation under this section.
14        (3) Subsection (1) of this section [shall] does not apply to land use regulations:
15        [(A)] (a) Restricting or prohibiting activities commonly and historically recognized as public
16   nuisances under common law[. This subsection shall be construed narrowly in favor of a finding of
17   compensation under this section];
18        [(B)] (b) Restricting or prohibiting activities for the protection of public health and safety, such
19   as fire and building codes, health                  and    sanitation     regulations,     solid    or   hazardous      waste
20   regulations[,] and pollution control regulations;
21        [(C)] (c) To the extent the land use regulation is required to comply with federal law;
22        [(D)] (d) Restricting or prohibiting the use of a property for the purpose of selling pornography
23   or performing nude dancing[. Nothing in this subsection, however, is intended to affect or alter rights
24   provided by the Oregon or United States Constitutions]; or
25        [(E)] (e) Enacted prior to the date of acquisition of the property by the owner or a family
26   member of the owner who owned the subject property prior to acquisition or inheritance by the
27   owner, whichever occurred first.
28        (4)(a) Subsection (3)(a) of this section shall be construed narrowly in favor of a finding
29   of compensation under this section.
30        (b) Nothing in subsection (3)(d) of this section is intended to affect or alter rights pro-
31   vided by the Oregon or United States Constitution.



     NOTE: Matter in boldfaced type in an amended section is new; matter [italic and bracketed] is existing law to be omitted.
     New sections are in boldfaced type.

     LC 3823
                                                 HB 3540


 1       [(4)] (5) Just compensation under subsection (1) of this section [shall be] is due the owner of the
 2   property if the land use regulation continues to be enforced against the property 180 days after the
 3   owner of the property makes a written demand for compensation under this section to the public
 4   entity enacting or enforcing the land use regulation.
 5       [(5)] (6) For claims arising from land use regulations enacted prior to December 2, 2004, the
 6   owner of the property shall make a written demand for compensation under [subsection (4) shall
 7   be made] subsection (5) of this section within two years of December 2, 2004, or the date the
 8   public entity applies the land use regulation as an approval [criteria] criterion to an application
 9   submitted by the owner of the property, whichever is later. For claims arising from land use regu-
10   lations enacted after December 2, 2004, the owner of the property shall make a written demand
11   for compensation under [subsection (4) shall be made] subsection (5) of this section within two
12   years of the enactment of the land use regulation, or the date the owner of the property submits a
13   land use application in which the land use regulation is an approval [criteria] criterion, whichever
14   is later.
15       [(6)] (7) If a land use regulation continues to apply to the subject property more than 180 days
16   after the present owner of the property has made written demand for compensation under this sec-
17   tion, the present owner of the property[,] or of any interest therein[, shall have] has a cause of
18   action for compensation under this section in the circuit court for the county in which the real
19   property is located, and the present owner of the real property shall be entitled to reasonable at-
20   torney fees, expenses, costs[,] and other disbursements reasonably incurred to collect the compen-
21   sation.
22       [(7)] (8) A metropolitan service district, city, [or] county[,] or state agency may adopt or apply
23   procedures for the processing of claims under this section, but in no event shall these procedures
24   act as a prerequisite to the filing of a compensation claim under subsection [(6)] (7) of this section,
25   nor shall the failure of an owner of property to file an application for a land use permit with the
26   local government serve as grounds for dismissal, abatement[,] or delay of a compensation claim un-
27   der subsection [(6)] (7) of this section.
28       [(8)] (9) Notwithstanding any other state statute or the availability of funds under subsection
29   [(10)] (11) of this section, in lieu of payment of just compensation under this section, the governing
30   body responsible for enacting the land use regulation may modify, remove[,] or not [to] apply the
31   land use regulation or land use regulations to allow the owner to use the property for a use per-
32   mitted at the time the owner acquired the property.
33       [(9)] (10) A decision by a governing body under this section [shall not be considered] is not a
34   land use decision as defined in ORS 197.015 [(11)].
35       [(10)] (11) Claims made under this section [shall] must be paid from funds, if any, specifically
36   allocated by the [legislature] Legislative Assembly, city, county[,] or metropolitan service district
37   for payment of claims under this section. Notwithstanding the availability of funds under this sub-
38   section, a metropolitan service district, city, county[,] or state agency [shall have discretion to] may
39   use available funds to pay claims or [to] may modify, remove[,] or not apply a land use regulation
40   or land use regulations pursuant to subsection [(6)] (9) of this section. If a claim has not been paid
41   within two years from the date on which it accrues, the owner [shall be allowed to] may use the
42   property as permitted at the time the owner acquired the property.
43       [(11)] (12) [Definitions - for purposes of] As used in this section:
44       [(A)] (a) "Family member" shall include the wife, husband, son, daughter, mother, father,
45   brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law,


                                                   [2]
                                              HB 3540


 1   aunt, uncle, niece, nephew, stepparent, stepchild, grandparent[,] or grandchild of the owner of the
 2   property, an estate of any of the foregoing family members[,] or a legal entity owned by any one or
 3   combination of these family members or the owner of the property.
 4       [(B)] (b) "Land use regulation" shall include:
 5       [(i)] (A) Any statute regulating the use of land or of any interest therein;
 6       [(ii)] (B) Administrative rules and goals of the Land Conservation and Development Commission;
 7       [(iii)] (C) Local government comprehensive plans, zoning ordinances, land division ordinances[,]
 8   and transportation ordinances;
 9       [(iv)] (D) Metropolitan service district regional framework plans, functional plans, planning
10   goals and objectives; and
11       [(v)] (E) Statutes and administrative rules regulating farming and forest practices.
12       [(C)] (c) "Owner" is the present owner of the property[,] or of any interest therein.
13       [(D)] (d) "Public entity" shall include the state, a metropolitan service district, a city[, or] and
14   a county.
15       [(12)] (13) The remedy created by this section is in addition to any other remedy under the
16   Oregon or United States [Constitutions] Constitution, and is not intended to modify or replace any
17   other remedy.
18       [(13)] (14) If any portion or portions of this section are declared invalid by a court of competent
19   jurisdiction, the remaining portions of this section [shall remain] continue in full force and effect.
20       SECTION 2. ORS 197.352 is added to and made a part of ORS chapter 197.
21       SECTION 3. This 2007 Act being necessary for the immediate preservation of the public
22   peace, health and safety, an emergency is declared to exist, and this 2007 Act takes effect
23   on its passage.
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