Agenda Packet 9-24-18 Meeting - Laserfiche WebLink

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{00286855;1 } MEMORANDUM Date: July 20, 2018 To: Mayor Lucy Vinis and City Council From: Dan Lawler, Assistant Planner Subject: Moore M49 Claim (M49 18-1) – Additional Information This memorandum provides additional information regarding several issues raised in testimony submitted for the Moore M49 (M49 18-1) claim. First, as discussed below, the statutory standard for evaluating M49 claims is whether a regulation restricts the desired residential use of the property. Second, legislative history shows that inclusion of the phrase “whichever is smaller” in EC 9.2751(18)(a)3. was not an error. Third, the claimant’s appraisal complies with the statutory requirements for Measure 49 claims and there is no statutory obligation for the City to obtain a third party review of the claimant’s appraisals. Public testimony was made that the City should deny the Moore M49 claim because the cited regulation does not prevent the residential use of the property. A review of the statutes cited in that testimony shows that the appropriate inquiry under Measure 49 is not whether the regulation prevents residential use, but whether the regulation restricts residential use. Under ORS 195.305(1), “if a public entity enacts one or more land use regulations that restrict the residential use of private real property…the owner of the property shall be entitled to just compensation.” (Emphasis added) Similarly, ORS 195.310(1)(c) provides that a person may file a claim if “the person’s desired use of the property is restricted by one or more land use regulations.” (Emphasis added) (See Attachment A) The statutory provisions discussed above do not contain the word “prevent” (see ORS 195.305(1) and 195.310(1)(c) in Attachment A). Though the statute does not define either ”prevent” or “restrict,” according to Webster’s Third New International Dictionary, “prevent” means “to keep from happening or existing,” while “restrict” means “to set bounds or limits to: hold within bounds.” (See Webster’s Third New Int’l Dictionary 1798, 1937 (unabridged ed. 1986)). The language of the statute requires localities to determine whether a regulation confines a residential use of the property within certain limits, rather than whether a regulation stops residential use of the property from happening altogether. September 24, 2018, Meeting - Item 3