3.20.050 Demand review process.
A. The planning director shall mail notice of the demand to the owner and to all owners of record of the property that is the subject of the demand, and to all owners of property within 300 feet of the property that is the subject of the demand, as listed on the most recent property tax assessment roll where such property is located. Additional mailed notice shall be sent to the Oregon Department of Land Conservation and Development, Oregon department of Justice, and such others as the city may designate by council resolution.
B. The planning director’s notice shall:
1. State the basis of the demand, the amount of the compensation sought, and the regulation that causes the compensation to be alleged to be due;
2. Identify the property by the street address or other easily understood geographical reference;
3. State that persons noticed may provide written comments, documents, and evidence regarding the demand, and provide the date written comments, documents, and evidence are due or, if a hearing has been requested, the date, time and location of the hearing. Include a general explanation of the requirements for submission of written comments, documents, and evidence or, if a hearing is to be held, the requirements for submission of oral or written testimony, documents, and evidence and the procedure for conduct of hearings;
4. Identify the city representative and telephone number to contact to obtain additional information; and
5. State that a copy of the demand and the supporting documents and evidence submitted by the owner are available for inspection at no cost, and that copies will be provided at reasonable cost.
C. Written comments, documents, and evidence regarding a demand may be submitted to the planning director. Unless a public hearing is held, all written comments, documents, and evidence must be received by the planning director within 14 days from the date of notice. The owner shall have an additional 7 days after this 14-day deadline to respond to any written comments, documents, and evidence received by the planning director. It is the duty of the owner to determine if comments and documents have been received by the planning director.
D. The planning director may, in the planning director’s discretion, retain the services of an appraiser to appraise the property and evaluate the demand to assist in determining the validity of a demand.
E. The planning director or designee shall hold a public hearing for the purpose of taking testimony and receiving written comments, documents, and evidence on the demand only if requested by:
1. The applicant, provided that the request for public hearing is made in the initial written demand; or
2. Another person entitled to notice, provided that the request for public hearing is made within 14 days from the date of notice.
If a public hearing is requested by the applicant, the planning director shall provide notice of the date, time, and location of the hearing in the notice issued under subsection B of this section. If a hearing is requested by other persons entitled to notice, a new notice shall be issued by the planning director to the applicant and to the remaining persons entitled to notice giving the date, time, and location of the hearing.
F. Whether or not a hearing is conducted:
1. All written comments, documents, or evidence relied upon by the owner and submitted to the planning director as a part of the demand shall be made part of the record by the city.
2. Any staff report shall be available at least seven days prior to the hearing.
G. If a hearing is conducted:
1. When the planning director reopens a record to admit new testimony, documents, or evidence, any person may raise new issues that relate t the new testimony, documents, evidence, or criteria for decision-making that apply to the matter at issue.
2. The failure of a person entitled to notice to receive notice as provided in this section shall not invalidate such proceedings if the city can demonstrate by affidavit that such notice was given. The notice provisions of this section shall not restrict the giving of notice by other means, including posting, newspaper publication, radio, and television.
H. The planning director shall make a recommendation, applying the standards of Ballot Measure 37, to the city council based on all of the information presented. The planning director will consider the city council criteria for decision and may recommend the city council take any of the actions set forth below. Should compensation be recommended by the planning director, the recommendation to the city council may include establishing any relevant conditions for compensation.
I. Within 21 days from the date of the close of the period for written comments or from the conclusion of the hearing, if one is requested, whichever time frame is applicable, the planning director shall make a recommendation to the city council as to whether compensation shall be paid, the amount of compensation to be paid, and/or whether any specific land use regulation should be modified, removed or not applied to the property.
1. A copy of the planning director’s recommendation and notice of the date, time, and place of the city council meeting at which the recommendation will be reviewed shall be sent by mail to the owner, and to all individuals that provided written comments and/or participated in the planning director’s hearing, not less than 7 days before the scheduled city council meeting, provided a mailing address was previously provided to the planning director as part of the review or hearing process.
J. Review of the Planning Director’s Recommendation and Decision on the Demand by the City Council. Review by the city council shall be on the record of the planning director’s review or hearing, and limited to the completed demand filed with the planning director, together with any and all testimony, written comments, documents, and evidence submitted in connection with any review or hearing before the planning director. Any staff report by the planning director to be used at the city council review shall be available at least four days prior to the city council meeting. In making its decision, the city council will consider the standards of Ballot Measure 37; the benefit(s) accruing to the public arising as a result of application of the regulation; and the burden to the public of paying compensation to the owner(s), taking into consideration the available financial resources of the city. The city council may take, but is not limited to taking, any one or more of the following actions on a demand:
1. Deny the demand based on, but not limited to, any one or more of the following findings:
a. The land use regulation does not restrict the use of the private real property;
b. The fair market value of the property is not reduced by the enactment, enforcement, or application of the land use regulation;
c. The demand was not timely filed;
d. The owner failed to comply with the requirements for making a demand as set forth in this section;
e. The owner is not the present property owner, or the property was not owned by a family member if that is required for compensation, or was not the property owner at the time the land use regulation was enacted, enforced, or applied;
f. The land use regulation is an exempt regulation as defined in Ballot Measure 37;
g. The land use regulation in question is not an enactment of the city;
h. The city has not taken final action to enact, enforce, or apply the land use regulation to the property;
i. The owner is not entitled to compensation under Ballot 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 the evidence in the record, subject to the availability and appropriation of funds for that purpose.
3. Modify the regulation.
4. Remove the regulation.
5. Not apply the regulation.
6. Take such other actions as the city council deems appropriate consistent with Ballot Measure 37.
K. The final decision on a demand shall be made by the city council. A copy of the city council decision shall be sent by mail to the owner and to each individual or entity that participated in the planning director or city council review process, provided a mailing address was provided to the city as part of the review process.
L. The owner shall bear the burden of proof relating to the demand and entitlement to just compensation. The city shall bear the burden of proof to show that the regulation is exempt under Ballot Measure 37. The standard of proof shall be by a preponderance of the evidence.
M. This section shall be interpreted in a manner consistent with Ballot Measure 37, and other implementing statutes or regulations and as interpreted by Oregon appellate courts. (Ord. 4818 §1, 2004).