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The Oregon Administrative Rules contain OARs filed through October 15, 2014
 
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DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT

 

DIVISION 41

MEASURE 49

Existing Claim Rules
(Measure 37 Claims, Including Supplemental Review Under Ballot Measure 49)

660-041-0000

Purpose and Applicability

(1) The purpose of OAR 660-041-0000 to 660-041-0150 is to implement Chapter 424, Oregon Laws 2007 (2007 Oregon Ballot Measure 49), Chapter 855, Oregon Laws 2009 (2009 House Bill 3225), and Chapter 8, Oregon Laws 2010 (2010 Senate Bill 1049), by establishing procedures for Supplemental Review of Measure 37 Claims. These rules also contain requirements for notice of applications and decisions regarding Measure 37 Permits, and clarify when a DLCD Measure 37 Waiver was required in addition to a waiver from a city or county. Finally, these rules also explain the effect of Measure 49 on DLCD Measure 37 Waivers.

(2) OAR 660-041-0010 applies to all Claims, Measure 37 Permits and DLCD Measure 37 Waivers that are subject to OAR 660-041-0020 to 660-041-0160, as well as to the Supplemental Review of Measure 37 Claims under OAR 660-041-0080 to 660-041-0160.

(3) OAR 660-041-0020 applies only to Claims that were received by DAS after December 4, 2006 and before December 6, 2007, and that are based on one or more DLCD Regulations and that are not described in section 3 of Chapter 855, Oregon Laws 2009.

(4) OAR 660-041-0030 applies to applications for and decisions on a Measure 37 Permit filed or made on or after February 20, 2007.

(5) OAR 660-041-0040 to 660-041-0070 apply to all DLCD Measure 37 Waivers.

(6) OAR 660-041-0080 to 660-041-0160 apply to the Supplemental Review of a Claim by DLCD.

Stat. Auth.: ORS 197.040, 197.065 & 2007 OL Ch. 424
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & 2007 OL Ch. 424
Hist.: LCDD 10-2006(Temp), f. 12-1-06, cert. ef 12-4-06 thru 6-2-07; LCDD 1-2007, f. 2-5-07, cert. ef. 2-9-07; LCDD 2-2007(Temp), f. & cert. ef. 12-10-07 thru 6-7-08; LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08; LCDD 3-2009(Temp), f. & cert. ef. 8-18-09 thru 2-14-10; LCDD 2-2010, f. & cert. ef. 2-9-10; LCDD 4-2010(Temp), f. & cert. ef. 5-7-10 thru 10-1-10; LCDD 8-2010, f. & cert. ef. 8-9-10

660-041-0010

Definitions

The following definitions apply to OAR 660-041-0000 to 660-041-0160:

(1) "Agency" has the meaning provided by ORS 183.310.

(2) "Claim" means a written demand for compensation under ORS 197.352 (2005) that was filed before December 6, 2007.

(3) "Claimant" means a person who submitted a Claim.

(4) "DAS" means the Department of Administrative Services.

(5) "DLCD" means the Department of Land Conservation and Development.

(6) "DLCD Measure 37 Waiver" means a decision by LCDC or DLCD that was made before December 6, 2007 under ORS 197.352 (2005) to modify, remove or not apply one or more DLCD Regulations to allow a Claimant to use the Measure 37 Claim Property for a use that was permitted when the Claimant acquired the Measure 37 Claim Property.

(7) "DLCD Regulation" means a Land Use Regulation that is also a state statute codified in ORS chapter 92, 195, 197, 215 or 227, a Statewide Planning Goal, or an LCDC rule. An "Existing DLCD Regulation" means a DLCD Regulation that was enacted by the State of Oregon or adopted by LCDC with an effective date prior to December 2, 2004. A "New DLCD Regulation" means a DLCD Regulation that was enacted by the State of Oregon or adopted by LCDC with an effective date of on or after December 2, 2004.

(8) “Elected” means signed and filed the form provided by DLCD.

(9) "Land Use Application" means an application for a "land use decision," a "limited land use decision," or an "expedited land division," as those terms are defined by ORS 197.015 and 197.360, or an application for a permit or zone change under ORS 227.160 to 227.187 or under 215.402 to 215.437.

(10) "Land Use Regulation" has the meaning provided by ORS 197.352(11) (2005).

(11) "LCDC" means the Land Conservation and Development Commission.

(12) “Measure 37 Claim Property” means the private real property described in a Measure 37 Claim.

(13) "Measure 37 Permit" means a final decision by a city, a county, or by Metro to authorize the development, division or other use of Measure 37 Claim Property pursuant to a Measure 37 Waiver. A Measure 37 Permit may be a land use decision, a limited land use decision, an expedited land use decision, a permit (as that term is defined in ORS 215.402 and 227.160), a zone change, or a comprehensive plan amendment. A Measure 37 Permit also includes a final decision by a city, a county, or by Metro that a person has a vested right to complete or continue a use based on a Measure 37 Waiver.

(14) "Measure 37 Waiver" means a decision by a city, a county, Metro or the State of Oregon that was made before December 6, 2007 under ORS 197.352 (2005) to modify, remove or not apply one or more Land Use Regulations to allow a Claimant to use the Measure 37 Claim Property for a use that was permitted when the Claimant acquired the Measure 37 Claim Property.

(15) “Measure 49” means Chapter 424, Oregon Laws 2007 as amended by Chapter 855, Oregon Laws 2009, and Chapter 8, Oregon Laws 2010.

(16) “Measure 49 Authorization” means a final order and authorization issued by the department under Measure 49 that authorizes a claimant to seek local approval of one or more home sites; or, for Claims described in section 5 or 6 of Chapter 8, Oregon Laws 2010, of a dwelling and, when applicable, a lot or parcel for that dwelling.

(17) “Supplemental Information” means information needed by DLCD, to proceed with the Supplemental Review of a Claim.

(18) “Supplemental Review” means review by DLCD of a Claim under either section 6 or section 7 of Measure 49 and when applicable, Chapter 855, Oregon Laws 2009 or Chapter 8, Oregon Laws 2010.

Stat. Auth.: ORS 197.040, 197.065 & 2007 OL Ch. 424
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & 2007 OL Ch. 424
Hist.: LCDD 10-2006(Temp), f. 12-1-06, cert. ef 12-4-06 thru 6-2-07; LCDD 1-2007, f. 2-5-07, cert. ef. 2-9-07; LCDD 2-2007(Temp), f. & cert. ef. 12-10-07 thru 6-7-08; LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08; LCDD 1-2009, f. & cert. ef. 4-2-09; LCDD 3-2009(Temp), f. & cert. ef. 8-18-09 thru 2-14-10; Administrative correction 3-22-10; LCDD 4-2010(Temp), f. & cert. ef. 5-7-10 thru 10-1-10; LCDD 8-2010, f. & cert. ef. 8-9-10

660-041-0020

Contents of a Measure 37 Claim Based on a DLCD Regulation

(1) Unless otherwise described in section 3 of Chapter 855, Oregon Laws 2009, when a Claim was received by DAS after December 4, 2006 and was based on one or more Existing DLCD Regulations, then the Claim must:

(a) Demonstrate that a city, county, Metro, or an Agency applied one or more Existing DLCD Regulations, or applied one or more city, county or Metro land use regulations that implement Existing DLCD Regulations, as approval criteria to an application submitted by the Claimant; and

(b) Include one of the following:

(A) A copy of the final written decision by a city, a county, or Metro on a Land Use Application that included the Measure 37 Claim Property and that requested authorization for the specific use that the Claim is based on, in which the city, county, or Metro determined that one or more Existing DLCD Regulations or city, county or Metro Land Use Regulations that implement Existing DLCD Regulations were approval criteria for the decision; or

(B) A copy of the final written action by an Agency on a complete application to the Agency, in which the Agency determined that one or more Existing DLCD Regulations were approval criteria for the application.

(2) Unless otherwise described in section 3 of Chapter 855, Oregon Laws 2009, when a Claim was based on one or more New DLCD Regulations, then the Claim must:

(a) Have been received by DAS within two years of:

(A) The effective date of the New DLCD Regulation; or

(B) Within two years of the date the Claimant submitted a Land Use Application in which the Land Use Regulations were approval criteria, whichever was later; and

(b) If the Claim was submitted more than two years after the effective date of the New DLCD Regulation, the Claim must include a copy of the final written decision by a city, a county, or Metro on a Land Use Application that includes the Measure 37 Claim Property and that requested authorization for the specific use that the Claim was based on, in which the city, county, or Metro determined that the New DLCD Regulation or city or county or Metro Land Use Regulation that implemented the New DLCD Regulation were approval criteria for the decision.

(3) Unless otherwise described in section 3 of Chapter 855, Oregon Laws 2009, when a Claim was based on both Existing and New DLCD Regulations, the requirements of section (1) of this rule must be met with respect to the Existing DLCD Regulation, and the requirements of section (2) of this rule must be met with respect to the New DLCD Regulation.

(4) A DLDC Regulation was applied as an approval criterion for purposes of this rule and ORS 197.352(5) (2005) when a city, county or Metro made a final written decision on a Land Use Application, or when an Agency took final written action on an application to that Agency, and that final written decision or final written action denied the application or conditioned the approval of the application on the basis (in whole or in part) of the DLCD Regulation.

(5) This rule applies only to Claims that were received by DAS after December 4, 2006, and that were based on one or more DLCD Regulations, and that are not described in section 3 of Chapter 855, Oregon Laws 2009.

Stat. Auth.: ORS 197.040, 197.065 & 2007 OL Ch. 424
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & 2007 OL Ch. 424
Hist.: LCDD 10-2006(Temp), f. 12-1-06, cert. ef 12-4-06 thru 6-2-07; LCDD 1-2007, f. 2-5-07, cert. ef. 2-9-07; LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08; LCDD 3-2009(Temp), f. & cert. ef. 8-18-09 thru 2-14-10; LCDD 2-2010, f. & cert. ef. 2-9-10

660-041-0030

Notice of Applications and Decisions

(1) Except for a building permit that is not a "land use decision" under ORS 197.015(11)(b)(B), cities, counties and Metro must provide written notice to DLCD of all applications for a Measure 37 Permit, and all final written decisions on a Measure 37 Permit, filed with or made by the city, county or Metro after February 20, 2007.

(2) Notice of an application for a Measure 37 Permit required under section (1) of this rule must be mailed to DLCD's Salem office at least ten (10) calendar days before any deadline for comment on the application for a Measure 37 Permit. If there is no opportunity for comment, then the notice must be sent ten (10) days before the decision becomes final. The notice must include:

(a) A copy of the applicable Measure 37 Waiver issued by the city, county, or by Metro;

(b) A copy of any notice provided under ORS 197.195, 197.365, 197.615, 197.763, 227.175 or 215.416;

(c) The claim number of the Measure 37 Waiver issued by the State of Oregon (if any);

(d) The terms of the State's Measure 37 Waiver as applicable criteria in the subject Land Use Application; and,

(e) The name of the present owner of the Measure 37 Claim Property.

(3) Notice of a final decision on a Measure 37 Permit required under section (1) of this rule must be mailed to DLCD's Salem office within ten (10) calendar days of the date of the final written decision. The notice must include a copy of the final written decision.

Stat. Auth.: ORS 197.040 & 197.065, Ch. 424, OL 2007
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & Ch. 424, OL 2007
Hist.: LCDD 10-2006(Temp), f. 12-1-06, cert. ef 12-4-06 thru 6-2-07; LCDD 1-2007, f. 2-5-07, cert. ef. 2-9-07; LCDD 2-2007(Temp), f. & cert. ef. 12-10-07 thru 6-7-08; LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08

660-041-0040

When a DLCD Measure 37 Waiver Was Required

Before a Claimant could lawfully use Measure 37 Claim Property for a use under a Measure 37 Waiver, the Claimant must have obtained a DLCD Measure 37 Waiver for that use of the Measure 37 Claim Property in all cases where that use was restricted by a DLCD Regulation or by a city, county or Metro Land Use Regulation that implements a DLCD Regulation. These cases include, but are not limited to, all cases where the use is a use of land, and the Measure 37 Claim Property includes:

(1) Land zoned for farm use under Goal 3;

(2) Land zoned for forest use under Goal 4; or

(3) Land outside of an acknowledged urban growth boundary where the Claimant's desired use of the Measure 37 Claim Property was an urban use under Goal 14, or that use included the establishment or extension of a sewer or water system restricted under Goal 11.

Stat. Auth.: ORS 197.040, 197.065 & Ch. 424, OL 2007
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & Ch. 424, OL 2007
Hist.: LCDD 1-2007, f. 2-5-07, cert. ef. 2-9-07; LCDD 2-2007(Temp), f. & cert. ef. 12-10-07 thru 6-7-08; LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08

660-041-0060

Effect of 2007 Ballot Measure 49 on DLCD Measure 37 Waivers

Any authorization for a Claimant to use Measure 37 Claim Property without application of a DLCD Regulation provided by a DLCD Measure 37 Waiver expired on December 6, 2007, as did the effect of any order of DLCD denying a Claim. A Claimant may continue an existing use of Measure 37 Claim Property that was authorized under ORS 197.352 (2005). A Claimant may complete a use of Measure 37 Claim Property that was begun prior to December 6, 2007, only if the Claimant had a common law vested right to complete and continue that use on December 6, 2007, and the use complies with the terms of any applicable DLCD Measure 37 Waiver.

Stat. Auth.: ORS 197.040, 197.065 & Ch. 424, OL 2007
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & Ch. 424, OL 2007
Hist.: LCDD 2-2007(Temp), f. & cert. ef. 12-10-07 thru 6-7-08; LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08

660-041-0070

State Agency and Special District Land Use Coordination and DLCD Measure 37 Waivers

After December 5, 2007, when a state agency or a special district is required to take an action in a manner that complies with the Statewide Planning Goals and that is compatible with comprehensive plans and land use regulations under ORS 197.180 (for a state agency), or under ORS 195.020 (for a special district), the state agency or special district must not take that action if it involves a use of Measure 37 Claim Property based on a Measure 37 Waiver. After December 5, 2007, any authorization to not apply a Land Use Regulation based on a DLCD Measure 37 Waiver has expired, and a DLCD Measure 37 Waiver may not serve as the basis for a finding required under ORS 197.180 or 195.020. This rule does not apply to a use that was lawfully established or vested based on a DLCD Measure 37 Waiver on December 6, 2007.

Stat. Auth.: ORS 197.040, 197.065 & Ch. 424, OL 2007
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & Ch. 424, OL 2007
Hist.: LCDD 2-2007(Temp), f. & cert. ef. 12-10-07 thru 6-7-08; LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08

660-041-0080

Supplemental Information for Supplemental Review of Measure 37 Claims under Measure 49 and Fees under Chapter 855, Oregon Laws 2009 and Chapter 8, Oregon Laws 2010

(1) If the record for the Claim does not include the information needed for DLCD to proceed with the Supplemental Review of the Claim, DLCD will request Supplemental Information from a Claimant or the Claimant’s authorized agent.

(2) If the Claim is described in sections 2 through 5a or Section 13 of Chapter 855, Oregon Laws 2009 a Claimant or Claimant’s authorized agent must submit a $175 fee to DLCD. DLCD will request the fee from a Claimant or the Claimant’s authorized agent.

(3) If the Claim is described in section 5 or 6 of Chapter 8, Oregon Laws 2010, a Claimant or Claimant’s authorized agent must submit a $2,500 fee to DLCD. If the Claim is divided into more than one claim under OAR 660-041-0150, an additional $2,500 fee is due for each resultant claim. If the Claim is combined with one or more other Claims, only one $2,500 fee is due for the resultant claim.

(4) Supplemental Information, and a $175 fee for a Claim described in sections 2 through 5a or section 13 of Chapter 855, Oregon Laws 2009, and a $2,500 fee for a Claim described in section 5 or 6 of Chapter 8, Oregon Laws 2010 must be filed with DLCD within fifty-six (56) days of the date the request is sent, and must be filed in the manner described in OAR 660-041-0100.

(5) For good cause shown, DLCD may extend the period for filing Supplemental Information or a $175 fee beyond fifty-six (56) days. DLCD will not extend the period for filing a $2,500 fee or Supplemental Information for a Claim described in section 5 or 6 of Chapter 8, Oregon Laws 2010.

(6) If DLCD fails to issue a final order on a Claim described in sections 2 through 5a, or Section 13 of Chapter 855, Oregon Laws 2009 by December 31, 2010, DLCD shall refund any $175 fee submitted for that Claim.

(7) If DLCD fails to issue a final order on a Claim described in section 5 or 6 of Chapter 8, Oregon Laws 2010 by June 30, 2011, DLCD shall refund any $2,500 fee submitted for that Claim.

Stat. Auth.: ORS 197.040, 197.065 & 2007 OL Ch. 424
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & 2007 OL Ch. 424
Hist.: LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08; LCDD 3-2009(Temp), f. & cert. ef. 8-18-09 thru 2-14-10; LCDD 2-2010, f. & cert. ef. 2-9-10; LCDD 4-2010(Temp), f. & cert. ef. 5-7-10 thru 10-1-10; LCDD 8-2010, f. & cert. ef. 8-9-10

660-041-0090

Procedures for Supplemental Review of Measure 37 Claims under Measure 49

(1) If a Claimant files an Election seeking relief under section 6 or section 7 of Measure 49 and, when applicable, Chapter 855, Oregon Laws 2009 and Chapter 8, Oregon Laws 2010, DLCD will review the Claim, as supplemented by the Election and the Supplemental Information, and prepare a Preliminary Evaluation of the relief that the Claimant may be entitled to. The Preliminary Evaluation will be based on and include an initial preliminary assessment of the number of lots, parcels and dwellings, if any, the Claimant lawfully was permitted to establish on the date the Claimant acquired the Measure 37 Claim Property.

(2) Prior to the issuance of the Preliminary Evaluation, DLCD will mail written notice of the Supplemental Review and a copy of any materials submitted by the Claimant to the county with land use jurisdiction over the Measure 37 Claim Property, and will provide that county an opportunity to submit written comment on the Supplemental Review. DLCD will consider all comments from the county in its preparation of the Preliminary Evaluation.

(3) DLCD will mail Notice of the Preliminary Evaluation to the Claimant, the Claimant’s authorized agent, the county with land use jurisdiction over the Measure 37 Claim Property, and to any person who is an owner of record of real property located either within 250 feet of the Measure 37 Claim Property, if the Measure 37 Claim Property is not within a farm or forest zone, or within 750 feet of the Measure 37 Claim Property if it is located in a farm or forest zone, and to any neighborhood or community organization(s) whose boundaries include any portion of the Measure 37 Claim Property or that has made a written request for a copy of the Preliminary Evaluation.

(4) Any person may submit written comments, evidence or information in response to the Preliminary Evaluation as provided in OAR 660-041-0100 within twenty-eight (28) days of the date the Preliminary Evaluation is mailed under section (3) of this rule.

(5) DLCD will mail copies of any comments, evidence and information concerning the Preliminary Evaluation that are timely received under section (4) of this rule to the Claimant and the Claimant’s authorized agent.

(6) The Claimant and the Claimant’s authorized agent may file written comments, evidence or information in response to any materials filed by a third party or county. To be considered by DLCD, the response must filed as provided in OAR 660-041-0100 within twenty-one (21) days after the date DLCD mailed the comments, evidence and information to the Claimant and the Claimant’s authorized agent as provided under section (5) of this rule.

(7) Based on the record, DLCD will prepare a Final Decision on the Claim, which either will deny the authorization of home sites or a dwelling; or will approve a the specific number of home sites under section 6 or section 7 of Measure 49 or a dwelling, and lot or parcel when applicable, for Claims described in section 5 or 6 of Chapter 8, Oregon Laws 2010. If approved, the Final Decision will authorize the county with land use jurisdiction over the Measure 37 Claim Property to approve a permit to allow the number of home sites approved or the approved dwelling, and unless the property includes a vacant lot or parcel, a lot or parcel for the dwelling, for Claims described in section 5 or 6 of Chapter 8, Oregon Laws 2010.

(8) Following issuance of the Final Decision, the owner of the Measure 37 Claim Property may file an application with the county with land use jurisdiction over the Measure 37 Claim Property for a permit to establish home sites authorized or to establish an authorized dwelling, and unless the property includes a vacant lot or parcel, a lot or parcel for the dwelling, for Claims described in section 5 or 6 of Chapter 8, Oregon Laws 2010.

(9) For good cause shown, DLCD may extend any time period under this rule.

Stat. Auth.: ORS 197.040, 197.065 & 2007 OL Ch. 424
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & 2007 OL Ch. 424
Hist.: LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08; LCDD 4-2010(Temp), f. & cert. ef. 5-7-10 thru 10-1-10; LCDD 8-2010, f. & cert. ef. 8-9-10

660-041-0100

Submissions to DLCD Regarding Supplemental Review of a Measure 37 Claim under Measure 49

(1) A Claimant may file the form electing how the Claimant wishes to proceed under sections 5 to 11 of Chapter 424, Oregon Laws 2007 (2007 Oregon Ballot Measure 49) only after receiving the notice and form from DLCD.

(2) All information filed with DLCD regarding the Supplemental Review of a Claim must be filed at: Supplemental Measure 49 Claim Review, 635 Capitol Street NE, Suite 150, Salem, Oregon 97301-2540

(3) Submissions regarding a Supplemental Review shall not be submitted by facsimile or electronically.

(4) The date information is filed is the date the information is received by DLCD, or the date it is mailed, provided it is mailed by registered or certified mail and the person filing the information has proof from the post office of such mailing date. If the date of mailing is relied upon as the date of filing, acceptable proof from the post office shall consist of a receipt stamped by the United States Postal Service showing the date mailed and the certified or registered number.

Stat. Auth.: ORS 197.040, 197.065 & Ch. 424, OL 2007
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & Ch. 424, OL 2007
Hist.: LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08

660-041-0110

Determining What Was Lawfully Permitted on the Claimant’s Acquisition Date

(1) A Claimant lawfully was permitted to establish one or more lots, parcels or dwellings on the Claimant’s acquisition date if DLCD determines that the characteristics of the Measure 37 Claim Property as it existed on that date, including the size, soil quality and location of the Measure 37 Claim Property, would have allowed the Claimant to satisfy the standards and criteria for approval of the lot, parcel or dwelling in effect on that date.

(2) Based on the Claimant’s acquisition date, as determined under ORS 195.328, DLCD will apply the following standards and criteria to determine the number of lots, parcels or dwellings that were lawfully permitted; or, for Claims described in section 5 or 6 of Chapter 8, Oregon Laws 2010, to determine whether, in addition to the existing lots, parcels and dwellings contained within the Measure 37 Claim Property, a Claimant was lawfully permitted to establish one dwelling and, unless the property includes a vacant lot or parcel, a lot or parcel for the dwelling:

(a) If the Claimant’s acquisition date is prior to January 25, 1975, DLCD will apply the applicable local land use regulations and comprehensive plan provisions, if any, along with any directly-applicable state statutes;

(b) If the Claimant’s acquisition date is on or after January 25, 1975 but before the date the county with land use jurisdiction over the Measure 37 Claim Property had its applicable comprehensive plan and land use regulations acknowledged by LCDC for compliance with the Statewide Planning Goals, DLCD will apply the standards set forth in section 2 of Chapter 8, Oregon Laws 2010.

(c) If the Claimant’s acquisition date is on or after the date the county with land use jurisdiction over the Measure 37 Claim Property had its applicable comprehensive plan and local land use regulations acknowledged by LCDC for compliance with the Statewide Planning Goals, DLCD will apply the applicable local land use regulations and comprehensive plan provisions along with any directly-applicable state statutes, Statewide Planning Goals, LCDC rules, or the standard set forth in section 4 of Chapter 8, Oregon Laws 2010.

Stat. Auth.: ORS 197.040, 197.065 & 2007 OL Ch. 424
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & 2007 OL Ch. 424
Hist.: LCDD 4-2008, f. & cert. ef. 5-23-08; LCDD 1-2009, f. & cert. ef. 4-2-09; LCDD 4-2010(Temp), f. & cert. ef. 5-7-10 thru 10-1-10; LCDD 8-2010, f. & cert. ef. 8-9-10

660-041-0120

Evaluation of Measure 37 Contiguous Property in Supplemental Review

(1) For purposes of the Supplemental Review of a Claim, ownership of contiguous property will be determined and evaluated as of the date the Claimant Elected relief under section 6 or section 7 of Measure 49.

(2) Except for Claims described in section 5 or 6 of Chapter 8, Oregon Laws 2010, in determining the relief to which a Claimant is entitled under section 6 or section 7 of Measure 49, the number of home site approvals a Claimant is entitled to will be reduced by the number of existing lots, parcels and dwellings contained within the entire property, which includes both the Measure 37 Claim Property and any contiguous property in the same ownership.

Stat. Auth.: ORS 197.040, 197.065 & 2007 OL Ch. 424
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & 2007 OL Ch. 424
Hist.: LCDD 4-2008, f. & cert. ef. 5-23-08; LCDD 4-2010(Temp), f. & cert. ef. 5-7-10 thru 10-1-10; LCDD 8-2010, f. & cert. ef. 8-9-10

660-041-0130

High-Value Farmland and High-Value Forestland

(1) Measure 37 Claim Property is high-value farmland as described in ORS 195.300(10) if:

(a) The Measure 37 Claim Property meets the criteria in ORS 195.300(10)(a) or (b), or both ORS 195.300(10)(a) and (b);

(b) All of the Measure 37 Claim Property meets the criteria in ORS 195.300(10)(c);

(c) The Measure 37 Claim Property is greater than five acres in size and all of the Measure 37 Claim Property is planted in wine grapes, as provided by ORS 195.300(10)(d); or

(d) All of the Measure 37 Claim Property meets the criteria in ORS 195.300(10)(e) or (f), or both ORS 195.300(10)(e) and (f).

(2) Measure 37 Claim Property is high-value forestland if it meets the criteria in ORS 195.300(11).

(3) To determine the cubic foot potential of Measure 37 Claim Property and whether it is high-value forestland as described in ORS 195.300(11), DLCD will use soil survey information from the U.S. Department of Agriculture’s Natural Resources Conservation Service (NRCS), unless other information or data are made a part of the record for the Supplemental Review, in which case DLCD will consider such information or data along with any pertinent NRCS information.

Stat. Auth.: ORS 197.040, 197.065 & Ch. 424, OL 2007
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & Ch. 424, OL 2007
Hist.: LCDD 4-2008, f. & cert. ef. 5-23-08

660-041-0140

Groundwater Restricted Areas

Measure 37 Claim Property is in a Ground Water Restricted Area if the Measure 37 Claim Property is located entirely within the boundaries of a Ground Water Limited Area or Critical Ground Water Area, or both.

Stat. Auth.: ORS 197.040, 197.065 & Ch. 424, OL 2007
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & Ch. 424, OL 2007
Hist.: LCDD 4-2008, f. & cert. ef. 5-23-08

660-041-0150

Combining and Dividing Claims

To evaluate the relief, if any, to which each Claimant is entitled under section 6 or section 7 of Measure 49, DLCD will divide a single Claim into two or more claims if the Measure 37 Claim Property contains multiple lots or parcels that are not in the same ownership. In addition, DLCD will combine multiple Claims into one claim if the Measure 37 Claim Property contains multiple contiguous lots or parcels that are in the same ownership.

Stat. Auth.: ORS 197.040, 197.065 & Ch. 424, OL 2007
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & Ch. 424, OL 2007
Hist.: LCDD 4-2008, f. & cert. ef. 5-23-08

660-041-0160

Appraisals Under Section 7 of Measure 49

(1) A Claimant seeking relief under section 7 of Measure 49 must provide an appraisal for the Measure 37 Claim Property showing the fair market value one year before the enactment of the Land Use Regulation(s) that are the basis for the Claim, and the fair market value one year after the enactment of the Land Use Regulation(s).

(2) The appraisal provided under this rule must also show the present fair market value of each lot, parcel or dwelling that the Claimant is seeking under section 7(2) of Measure 49. The appraisal must comply with all provisions of section 7(7) of Measure 49.

(3) For the Claimant to obtain relief under section 7, the appraisal must show that the enactment of one or more Land Use Regulations that are the basis of the Claim, other than land use regulations described in ORS 197.352(3) (2005), caused a reduction in the fair market value of the Measure 37 Claim Property that is equal to or greater than the fair market value of the home site approvals that may be established on the property under section 7(2) of Measure 49. The reduction in fair market value of the Measure 37 Claim Property must be measured as set forth in section 7(6) of Measure 49.

Stat. Auth.: ORS 197.040, 197.065 & Ch. 424, OL 2007
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & Ch. 424, OL 2007
Hist.: LCDD 4-2008, f. & cert. ef. 5-23-08

660-041-0170

Notice of County Applications and Decisions Under Measure 49

(1) The county with land use jurisdiction over property for which a Measure 49 Authorization has been issued must provide written notice to DLCD of any land use application that seeks approval of one or more home sites or of a dwelling, and lot or parcel when applicable, for Claims described in section 5 or 6 of Chapter 8, Oregon Laws 2010 under the Measure 49 Authorization,; and of all final written decisions on home site approvals or on a dwelling, and lot or parcel when applicable, for Claims described in section 5 or 6 of Chapter 8, Oregon Laws 2010 that are based on a Measure 49 Authorization.

(2) Notice of an land use application for home site approval(s) or for a dwelling, and lot or parcel when applicable, for Claims described in section 5 or 6 of Chapter 8, Oregon Laws 2010 under a Measure 49 Authorization, required under section (1) of this rule, must be mailed to DLCD’s Salem office at least ten (10) calendar days before any deadline for comment on the application. If there is no opportunity for comment, then the notice must be sent ten (10) days before the decision becomes final. The notice must include:

(a) A copy of any notice provided under ORS 197.195, 197.365, 197.615, 197.763, 227.175 or 215.416;

(b) The claim number of the Measure 49 Authorization issued by the State of Oregon; and

(c) The name of the present owner of the Measure 49 Claim Property.

Stat. Auth.: ORS 197.040 & 197.065
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & 2007 OL Ch. 424
Hist.: LCDD 1-2009, f. & cert. ef. 4-2-09; LCDD 4-2010(Temp), f. & cert. ef. 5-7-10 thru 10-1-10; LCDD 8-2010, f. & cert. ef. 8-9-10

660-041-0180

County Implementation of Measure 49 Authorizations

(1) The county with land use jurisdiction over the Measure 37 Claim Property must approve an application for a county permit submitted as provided in OAR 660-041-0090(8), based on current local standards, if the county finds that:

(a) the approval of the proposed lots, parcels or dwellings is not prohibited by one or more current local siting or development standard(s) that the county finds are reasonably necessary in order to avoid or abate a nuisance, to protect public health or safety, or to carry out federal law; and

(b) the owner has not received county permits for more than a total of 20 home site approvals statewide pursuant to Measure 49 Authorizations.

(2) If the Measure 37 Claim Property is zoned for farm, forest or mixed farm and forest use, the county must also determine and find:

(a) if the property is located on high-value farm or forest land, or on land within a ground water restricted area, as defined in these rules, each new lot or parcel does not exceed two acres; or

(b) if the property is not located on high-value farm or forest land, and is not on land within a groundwater restricted area, as defined in these rules, each new lot or parcel does not exceed five acres; and

(c) all new lots or parcels are located on the property in a manner that maximizes suitability of the remnant lot or parcel for farm or forest use.

(3) If the owner has received Measure 49 Authorizations for more than one Measure 37 Claim Property, and proposes to cluster some or all of the authorized lots, parcels or dwellings on one of the Measure 37 Claim Properties by transferring the right to develop one or more authorized home sites from one or more other Measure 37 Claim Properties the county must determine:

(a) if all affected properties are farm, forest, or mixed farm and forest zoned, the property on which the lots, parcels or dwellings are proposed to be clustered is less suitable than the other property or properties for farm or forest use;

(b) if one or more of the affected properties is zoned for rural residential use, the clustered lots, parcels or dwellings are located on a property zoned for rural residential use;

(c) that no home site approvals are transferred from a Measure 37 Claim Property that contains multiple dwellings on a single lot or parcel;

(d) that the number of lots, parcels or dwellings that may be established on the Measure 37 Claim property to which additional home site approvals are transferred is reduced by the number of existing lots, parcels and dwellings on that Measure 37 Claim Property and on contiguous property in the same ownership in accordance with Section 6(2) of Measure 49; and

(e) that following completion of the development based on the Measure 49 Authorizations, the net number of lots or parcels developed with dwellings on all the affected Measure 37 Claim Properties and contiguous properties in the same ownership will not exceed the number of home site approvals authorized for all affected properties.

(4) Prior to the final approval of clustered lots or parcels as provided in OAR 660-041-0180(3), the owner shall provide evidence that a Declaration of Use Restriction has been recorded with the county clerk of every county where a Measure 37 Claim Property from which home site approvals have been transferred is located.

(a) As depicted in Examples A and B, the Declaration of Use Restriction shall:

(A) identify the Measure 37 Claim Property on which the lots, parcels or dwellings are approved to be clustered;

(B) identify all the Measure 37 Claim Properties from which home site approvals are transferred; preclude on each Measure 37 Claim Property from which one or more home site approvals are transferred all future rights to establish new lots, parcels or dwellings other than any lot, parcel or dwelling established pursuant to a home site approval the owner did not transfer from the property; and

(C) state that the Declaration of Use Restrictions is irrevocable, unless a statement of release is signed by an authorized representative of the county or counties where the affected property is located, which verifies that no lot, parcel or dwelling has been established pursuant to any home site approval that was approved for transfer and the approval of the transfer and clustering has been revoked or expired.

(b) The county planning director or assignee shall maintain a copy of the Declaration of Use Restrictions and a map or other record depicting the Measure 37 Claim Property subject to the Declaration of Use Restrictions, filed in the county deed records. The map or other record required by this subsection shall be available to the public in the county planning office.

Example A- Full Transfer

Declaration of Property Use Restriction

The undersigned ______________ (Declarant) is the owner of the Measure 37 claim property described in Exhibits A (Final Order and Authorization in claim Exxxxxx) and B (Final Order and Authorization in claim Exxxxxx); and

The Declarant obtained authorizations under Measure 49, which authorized [X] lots or parcels developed with dwellings on the claim property described in Exhibit A, and [Y] lots or parcels developed with dwellings on the claim property described in Exhibit B; and

The Declarant proposes to cluster on the property described in Exhibit A, all of the [X+Y] lots or parcels developed with dwellings described in Exhibits A and B, in accordance with ORS 195.305 Section 11(4).

Because the lots or parcels developed with dwellings described in Exhibit B have been transferred to the property described in Exhibit A, recording this document establishes a restriction on the property described in Exhibit B prohibiting the establishment of any additional lots, parcels or dwellings on that property.

This restriction cannot be removed unless a statement of release is signed by an authorized representative of the county or counties where the property described in Exhibit A is located, which verifies that lots, parcels or dwellings authorized to be clustered have not been established and the approval of the clustering has been revoked or expired; or until a change in zoning or other land use regulations renders the restrictions imposed by current zoning moot; the legislature provides by statute that this restriction can be removed; or the authorizations granted through Exxxxxx and Exxxxxx are otherwise determined to be no longer applicable.

Dated this ___ day of _____, ____.

[signature and notary]

Example B -- Partial Transfer

Declaration of Property Use Restriction

The undersigned ______________ (Declarant) is the owner of the Measure 37 claim property described in Exhibits A (Final Order and Authorization in claim Exxxxxx) and B (Final Order and Authorization in claim Exxxxxx); and

The Declarant obtained authorizations under Measure 49, which authorized [X] lots or parcels developed with dwellings on the claim property described in Exhibit A, and [Y] lots or parcels developed with dwellings on the claim property described in Exhibit B; and

The Declarant proposes to cluster on the property described in Exhibit A, [X + M] of the [X+Y] lots or parcels developed with dwellings described in Exhibits A and B, in accordance with ORS 195.305 Section 11(4).

Because [M] of the [Y] lots or parcels developed with dwellings described in Exhibit B have been transferred to the property described in Exhibit A, [Y-M] lots or parcels developed with dwellings are authorized on the property described in Exhibit B. Recording this document, therefore, establishes a restriction on the property described in Exhibit B prohibiting the establishment of any lots, parcels or dwellings that would result in more than [Y-M] lots or parcels developed with dwellings on that property.

This restriction cannot be removed unless a statement of release is signed by an authorized representative of the county or counties where the property described in Exhibit A is located, which verifies that lots, parcels or dwellings authorized to be clustered have not been established and the approval of the clustering has been revoked or expired; or until a change in zoning or other land use regulations renders the restrictions imposed by current zoning moot; the legislature provides by statute that this restriction can be removed; or the authorizations granted through Exxxxxx and Exxxxxx are otherwise determined to be no longer applicable.

Dated this ___ day of _____, ____.

[signature and notary]

New Claim Rules

(Ballot Measure 49)

Stat. Auth.: ORS 197.040 & 2010 OL Ch. 8
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065 & 197.353. 2007 OL Ch. 855 & 2010 OL Ch. 8
Hist.: LCDD 8-2010, f. & cert. ef. 8-9-10

New Claim Rules (Ballot Measure 49)

660-041-0500

Purpose and Applicability

The purpose of OAR 660-041-0500 to 660-041-0530 is to clarify and implement ORS 195.300 to 195.336 (2007 Oregon Ballot Measure 49) in terms of the requirements and procedures for filing and reviewing Measure 49 Claims. These rules apply to Measure 49 Claims filed with the State of Oregon.

Stat. Auth.: ORS 195.300 - 195.336, 197.040 & 197.065
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065 & 197.353
Hist.: LCDD 2-2007(Temp), f. & cert. ef. 12-10-07 thru 6-7-08; LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08

660-041-0510

Definitions

The following definitions apply to OAR 660-041-0500 to 660-041-0530:

(1) “Agency” has the meaning provided by ORS 183.310.

(2) “Claimant” means an Owner who filed a Measure 49 Claim.

(3) “DLCD” means the Department of Land Conservation and Development.

(4) “DLCD Regulation” has the meaning provided by ORS 195.300(14)(a)-(b) and 195.300(14)(g).

(5) “Farming Practice” has the meaning provided by ORS 195.300(5).

(6) “File” or “Filed” has the meaning provided by ORS 195.300(7). The date a document is Filed is the date that it is received by the Public Entity.

(7) “Forest Practice” has the meaning provided by ORS 195.300(8).

(8) “Land Use Regulation” has the meaning provided by ORS 195.300(14). A "New Land Use Regulation" means a Land Use Regulation that was enacted by the State of Oregon or adopted by an Agency on or after January 1, 2007.

(9) “Lot” means a single unit of land that is created by a subdivision of land as defined in ORS 92.010.

(10) “Measure 49 Claim” means:

(a) A claim Filed with the State of Oregon under ORS 195.300 to 195.336 after December 5, 2007; and

(b) A claim Filed with the State of Oregon under ORS 197.352 (2005) that was Filed between June 29, 2007 and December 5, 2007 if no corresponding claim was filed for the Property with the city or county with land use jurisdiction over the Property prior to June 29, 2007.

(11) “Owner” has the meaning provided by ORS 195.300(16).

(12) “Parcel” means a single unit of land that is created by a partitioning of land as defined in ORS 92.010 and 215.010.

(13) “Property” has the meaning provided by ORS 195.300(17).

(14) “Regulating Entity” means an Agency that has enacted, or has authority to remove, modify or not apply, the Land Use Regulation(s) identified in the Measure 49 Claim.

Stat. Auth.: ORS 197.040, 197.065 & Ch. 424, OL 2007
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065, 197.353 & Ch. 424, OL 2007
Hist.: LCDD 2-2007(Temp), f. & cert. ef. 12-10-07 thru 6-7-08; LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08

660-041-0520

Procedures for Measure 49 Claims

(1) A Measure 49 Claim must be Filed by the Owner of the Property or an authorized agent of the Owner. A Measure 49 Claim must be Filed on a claim form available from DLCD at the address provided in this rule, or from DLCD’s website, and must contain all information required by the form. Claims may not be submitted by facsimile or electronically.

(2) A Measure 49 Claim must be Filed with DLCD at: Measure 49 Claims, 635 Capitol St. NE, Suite 150, Salem 97301-2540

(3) If the Measure 37 Claim was Filed after June 28, 2007, but before December 6, 2007, and if no corresponding claim was filed for the Property with the city or county with land use jurisdiction over the Property prior to June 29, 2007, the Measure 37 Claim is deemed Filed on December 6, 2007 for purposes of ORS 195.312.

(4) DLCD’s form for a Measure 49 Claim will require at least the following information:

(a) The name and mailing address of each Claimant and each Owner of the Property.

(b) Evidence establishing that each Claimant is an Owner of the Property.

(c) The consent to the Measure 49 Claim by each Owner of the Property if there are Owners of the Property other than the Claimant, which consent must be notarized.

(d) A description of the Claimant’s specific desired use of the Property, which use must be a residential use or a Farming Practice or a Forest Practice. The description must be sufficiently specific to establish that each Land Use Regulation listed under paragraph (g) of this rule applies to and restricts the Claimant’s desired use.

(e) The location of the Property by reference to:

(A) The township, range, section and tax lot number for each Lot or Parcel that makes up the Property;

(B) The street address of each Lot or Parcel that makes up the Property, if a street address has been assigned;

(C) The county the Property is located in; and

(D) If the Property is located within a city, the name of that city.

(f) Evidence of each Claimant’s Acquisition Date, as provided in ORS 195.328;

(g) A listing of each specific New Land Use Regulation that is alleged to restrict the Claimant’s desired use of the Property, and for each New Land Use Regulation listed, a description of how that regulation restricts the Claimant’s desired use of the property;

(h) An appraisal of the reduction in the fair market value of the Property caused by the enactment of each listed New Land Use Regulation as provided in ORS 195.310.

(5) DLCD will review a Measure 49 Claim to determine whether it complies with the requirements of ORS 195.310 to 195.312. If the Measure 49 Claim is incomplete, within sixty (60) days of receiving the Claim, DLCD will notify the person who filed the Claim of the information that is missing. The notification will be in writing. A Measure 49 Claim is complete when DLCD receives:

(a) The missing information;

(b) Part of the missing information and written notice from the Claimant that the remainder of the missing information will not be provided; or

(c) Written notice from the Claimant that none of the missing information will be provided.

(6) If a Claimant submits a request in writing for additional time to provide missing information, DLCD may for good cause shown agree to provide such additional time, which agreement must be in writing. An agreement to allow additional time has the effect of abating the time requirements under ORS 195.312 and 195.314, until the date specified in the agreement.

(7) If DLCD does not notify the Claimant within sixty (60) days after a Measure 49 Claim is Filed that information is missing from the Claim, the Claim is deemed complete when Filed.

(8) If the Claimant does not respond in writing to the written notification from DLCD under section (5) of this rule within sixty (60) days of the date the written notification was sent, the Claim is deemed withdrawn.

(9) DLCD will provide notice of a Measure 49 Claim as provided by ORS 195.314. The notice will describe the Measure 49 Claim and specify a deadline by which written evidence and arguments must be Filed. The Claimant may respond to the written evidence and argument by Filing a written response within fifteen (15) days of the date specified as the deadline for the initial evidence and argument.

(10) DLCD will mail a copy of its final determination to the Claimant and to any person who timely filed written evidence or arguments.

Stat. Auth.: ORS 195.300 - 195.336, 197.040 & 197.065
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065 & 197.353
Hist.: LCDD 2-2007(Temp), f. & cert. ef. 12-10-07 thru 6-7-08; LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08

660-041-0530

Coordinating with Other Regulating Entities

(1) If the Measure 49 Claim is based, in whole or in part, on a New Land Use Regulation that was enacted by an Agency other than DLCD, or the New Land Use Regulation is a state statute that is administered by an Agency other than DLCD, DLCD will forward the Claim to that Agency.

(2) When a Measure 49 Claim is based, in whole or in part, on a New Land Use Regulation for which there is no Regulating Entity, DLCD will forward the Claim to the Department of Administrative Services.

(3) When a Regulating Entity other than DLCD is wholly responsible for a Measure 49 Claim, that Regulating Entity will process the Claim using the procedures set forth in OAR 660-041-0520 unless that Regulating Entity has adopted its own procedures for review.

(4) When a Regulating Entity other than DLCD is partially responsible for a Measure 49 Claim, DLCD will coordinate the review of the Claim under the procedures set forth in OAR 660-041-0520. However, the other Regulating Entity will decide whether the Claimant is entitled to relief with respect to the New Land Use Regulations that it enacted or that it administers as provided in ORS 195.300 to 195.336 and if so what form of relief to grant under ORS 195.310(5) with respect to those regulations.

(5) DLCD will issue the final order itself or jointly with one or more other Regulating Entities.

Stat. Auth.: ORS 195.300 - 195.336, 197.040 & 197.065
Stats. Implemented: ORS 195.300 - 195.336, 197.015, 197.040, 197.065 & 197.353
Hist.: LCDD 2-2007(Temp), f. & cert. ef. 12-10-07 thru 6-7-08; LCDD 2-2008(Temp), f. & cert. ef. 2-21-08 thru 6-10-08; LCDD 4-2008, f. & cert. ef. 5-23-08

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