Local Government Planning Coordination

ORS 195.305
Compensation for restriction of use of real property due to land use regulation


(1)

If a public entity enacts one or more land use regulations that restrict the residential use of private real property or a farming or forest practice and that reduce the fair market value of the property, then the owner of the property shall be entitled to just compensation from the public entity that enacted the land use regulation or regulations as provided in ORS 195.310 (Claim for compensation) to 195.314 (Notice of claim).

(2)

Just compensation under ORS 195.310 (Claim for compensation) to 195.314 (Notice of claim) shall be based on the reduction in the fair market value of the property resulting from the land use regulation.

(3)

Subsection (1) of this section shall not apply to land use regulations that were enacted prior to the claimant’s acquisition date or to land use regulations:

(a)

That restrict or prohibit activities commonly and historically recognized as public nuisances under common law;

(b)

That restrict or prohibit activities for the protection of public health and safety;

(c)

To the extent the land use regulations are required to comply with federal law;

(d)

That restrict or prohibit the use of a property for the purpose of selling pornography or performing nude dancing;

(e)

That plan and rezone land to an industrial zoning classification for inclusion within an urban growth boundary; or

(f)

That plan and rezone land within an urban growth boundary to an industrial zoning classification.

(4)

(a)

Subsection (3)(a) of this section shall be construed narrowly in favor of granting just compensation under this section. Nothing in subsection (3) of this section is intended to affect or alter rights provided by the Oregon or United States Constitution.

(b)

Subsection (3)(b) of this section does not apply to any farming or forest practice regulation that is enacted after January 1, 2007, unless the primary purpose of the regulation is the protection of human health and safety.

(c)

Subsection (3)(c) of this section does not apply to any farming or forest practice regulation that is enacted after January 1, 2007, unless the public entity enacting the regulation has no discretion under federal law to decline to enact the regulation.

(5)

A public entity may adopt or apply procedures for the processing of claims under ORS 195.310 (Claim for compensation) to 195.336 (Compensation and Conservation Fund).

(6)

The public entity that enacted the land use regulation that gives rise to a claim under subsection (1) of this section shall provide just compensation as required under ORS 195.310 (Claim for compensation) to 195.336 (Compensation and Conservation Fund).

(7)

A decision by a public entity that an owner qualifies for just compensation under ORS 195.305 (Compensation for restriction of use of real property due to land use regulation) to 195.336 (Compensation and Conservation Fund) and sections 5 to 11, chapter 424, Oregon Laws 2007, sections 2 to 9 and 17, chapter 855, Oregon Laws 2009, and sections 2 to 7, chapter 8, Oregon Laws 2010, and a decision by a public entity on the nature and extent of that compensation are not land use decisions.

(8)

The remedies created by ORS 195.305 (Compensation for restriction of use of real property due to land use regulation) to 195.336 (Compensation and Conservation Fund) and sections 5 to 11, chapter 424, Oregon Laws 2007, sections 2 to 9 and 17, chapter 855, Oregon Laws 2009, and sections 2 to 7, chapter 8, Oregon Laws 2010, are in addition to any other remedy under the Oregon or United States Constitution, and are not intended to modify or replace any constitutional remedy.

(9)

If any portion or portions of this section are declared invalid by a court of competent jurisdiction, the remaining portions of this section shall remain in full force and effect. [Formerly 197.352; 2013 c.279 §1]

Notes of Decisions

Requirement that state and local entities decide whether to pay just compensation or to modify, remove or not apply certain land use regulations does not divest legislative bodies of plenary power to enact future legislation. MacPherson v. Department of Administrative Services, 340 Or 117, 130 P3d 308 (2006)

Paying just compensation only to, or modifying, removing or not applying land use regulation only for, landowners who acquired property prior to enactment of regulation does not constitute unconstitutional denial of equal protection, suspension of law or waiver of sovereign immunity. MacPherson v. Department of Administrative Services, 340 Or 117, 130 P3d 308 (2006)

Authorizing governing body responsible for enacting land use regulation to determine whether to pay just compensation or to modify, remove or not apply regulation in certain instances does not unconstitutionally delegate executive powers to legislative body. MacPherson v. Department of Administrative Services, 340 Or 117, 130 P3d 308 (2006)

Land use regulations enacted to implement interstate compact regarding Columbia River Gorge National Scenic Area are regulations “required to comply with federal law.” Columbia River Gorge Commission v. Hood River County, 210 Or App 689, 152 P3d 997 (2007), Sup Ct review denied

Where administrative decision denies claimant is entitled to compensation at all, jurisdiction for appeal is with circuit court for county in which property is located. Emmel v. Department of Land Conservation and Development, 213 Or App 681, 162 P3d 354 (2007)

Notwithstanding ORS 215.427, criteria and standards established under Measure 37 waiver are of no effect. Pete’s Mountain Homeowners Association v. Clackamas County, 227 Or App 140, 204 P3d 802 (2009), Sup Ct review denied

Relief granted by Measure 37 waiver applies solely to present owner of property. Yamhill County v. Board of Commissioners, 298 Or App 241, 446 P3d 548 (2019), Sup Ct review denied

Law Review Citations

36 EL 25, 53, 79, 131, 177, 187 (2006); 85 OLR 815, 1063 (2006); 38 EL 209, 1111 (2008); 45 WLR 313 (2008); 46 WLR 577 (2010)


Source

Last accessed
May 26, 2023