OAG 01-4.
Case Date | February 13, 2001 |
Court | Oregon |
Oregon Attorney General Opinions
2001.
OAG 01-4.
284OPINION NO. 01-4[49 Or. Op. Atty. Gen. 284]No. 8277February 13, 2001The Honorable John KitzhaberGovernor
This opinion concerns
Ballot Measure 7, which was proposed through an initiative petition and
approved by the people at the general election held on November 7, 2000.(fn1)
Measure 7 amended Article I, section 18, of the Oregon Constitution to require
state and local governments to pay compensation to property owners if a
government regulation restricts the use of their property in a manner that
reduces its value.(fn2)285FIRST QUESTION PRESENTEDDo any state
agencies have authority to adopt rules governing the procedures for claims
against the state under Measure 7, or is legislation required? Specifically,
may agencies adopt rules addressing: (1) the proper form and content of a
claim, (2) the time limitations within which a claim must be filed, (3) where a
claim must be submitted, (4) the adjudication of claims, and (5) the
substantive interpretation of Measure 7?ANSWER
GIVENThe Department of Administrative Services (DAS)
has authority to prescribe forms and procedures for claims for payment from
moneys in the State Treasury. ORS 293.306. DAS's authority encompasses claims
for compensation under Measure 7, but it is limited to establishing procedural
requirements that do not require substantive interpretation of Measure 7.
Within this restriction, DAS may adopt rules specifying the proper form and
content of a claim against the state, including a requirement that the claimant
provide evidence sufficient to support the elements of the claim.DAS may specify the agency with which a claim must be filed,
although under current law, this agency must either be DAS or the agency
responsible for adopting or enforcing the regulation at issue in the claim. The
time limitation for filing a claim against the state is established by ORS
293.321; DAS may not adopt an inconsistent rule. DAS has the authority to adopt
rules that establish an adjudicatory process for Measure 7 claims.If DAS exercises its authority under ORS 293.306 to
prescribe forms and procedures for Measure 7 claims, the use of such forms and
compli
286ance with those procedures will be mandatory. ORS chapter 293 does not
cover all of the issues that will be relevant to Measure 7 claims.SECOND QUESTION PRESENTEDUnder
Measure 7, compensation is due to a property owner only if there is a
government "regulation" that "restricts the use of private real property." The
Measure does not require compensation due to a government regulation
"prohibiting the use of a property for the purpose of selling pornography,
performing nude dancing, selling alcoholic beverages or other controlled
substances, or operating a casino or gaming parlor."(a) What is a "regulation"?(b) When does a
regulation "restrict[ ] the use of private real property"?(c) Does the exception for regulations that prohibit the use of property
for "selling pornography, performing nude dancing, selling alcoholic beverages
or other controlled substances, or operating a casino or gaming parlor" mean
that regulations that merely restrict those same activities require
compensation?ANSWER GIVEN(a) For purposes of Measure 7, a "regulation" is any law, rule, ordinance
or other enforceable legislative or quasi-legislative action of government. A
"goal" or "resolution" is a regulation only if it is enforceable.(b) A regulation "restricts the use of private real
property" under subsection (a) of Measure 7 if it permanently or temporarily:
(1) limits or bars the exclusive right of the owner to possess or dispose of
the property, (2) limits or bars the purposes for which property may be
employed or occupied, including prohibitions of particular uses as well as
limitations on the circumstances in which a particular use may be established
or expanded, (3) limits or governs the physical extent to which or the
conditions under which property may be employed (whether generally or for a
particular purpose), or (4) limits or bars the benefit or profit arising from
the employment or occupation of the property.Regulations that burden the use of property but that do not directly
limit or prescribe what uses are allowed or how allowed uses are carried out,
such as ad valorem taxes, general laws governing occupations without regard to
how private real property is used, and other civil and criminal laws that
generally prohibit or restrict a person's conduct not involving the use of
property, do not come within subsection (a) of
287 Measure 7 even if they may
affect or place a burden on private property owners.(c) The exception from compensation for a regulation that prohibits the
use of property for "selling pornography, performing nude dancing, selling
alcoholic beverages or other controlled substances, or operating a casino or
gaming parlor" covers only those regulations that expressly prohibit the use of
property for those activities. Regulations that merely restrict those same
activities are not within the exception.THIRD
QUESTION PRESENTEDSubsection (a) of Measure 7
creates a right to compensation when state or local "government passes or
enforces a regulation" that restricts the use of private real property in a
manner that reduces its value. Subsection (d) of Measure 7 states that
compensation is due if the regulation "was adopted, first enforced or applied"
after the current property owner became the owner and if the regulation
"continues to apply to the property" 90 days after the owner applies for
compensation.(a) Does Measure 7 create a right to
compensation for government actions taken before the effective date of Measure
7?(b) What types of government action come within the
phrase "government passes or enforces a regulation" in subsection (a) of the
Measure?(c) Does Measure 7 create a right to
compensation if, after the effective date of Measure 7, the government
"enforces" a regulation that "was adopted" before the effective date of Measure
7?(d) Under what circumstances will the requirement
in subsection (d) of Measure 7 that the regulation "was adopted, first enforced
or applied after the current owner of the property became the owner" be
met?(e) What is the meaning of the phrase "continues
to apply to the property" in subsection (d) of Measure 7?(f) If a regulation requires an owner to apply to the government for
authorization for the desired use of the property, must the owner complete the
government's application process before the owner has a claim for
compensation?ANSWER GIVENThe text of subsections (a) and (d) of Measure 7 must be read together so
as to give effect to both provisions. Subsection (a) establishes which
government actions create a potential right to compensation, and
288
subsection (d) establishes the conditions necessary for that potential right to
be exercised by a particular current owner of private real property.(a) Measure 7 does not create a right to compensation for
government actions taken before the effective date of the Measure. Government
must either pass or enforce a regulation after the Measure's effective
date.(b) Two types of government action come within
the phrase "government passes or enforces" in subsection (a) of Measure 7.
Government "passes" a regulation when it enacts or approves the regulation.
Government "enforces" a regulation when it acts in any way to give force or
effect to the regulation in question by any means other than adopting or
passing the regulation. The government may give effect to a law in a wide
variety of ways, not all of which necessarily involve direct compulsion. For
purposes of subsection (a), once government "enforces" the regulation as to any
property, the owners of all properties subject to the regulation have a right
to compensation if they satisfy the conditions of subsection (d) of Measure
7.(c) Measure 7 creates a right to compensation for
the enforcement of regulations adopted before the effective date of Measure 7
if the act of enforcing those regulations occurs after the Measure's effective
date.(d) If the current owner of a property became
the owner before the regulation was adopted, the owner will qualify for
compensation under the first part of subsection (d) of Measure 7. While the
answer is not free from doubt, we believe that if the current owner of a
property became the owner after the regulation was adopted, the owner will
qualify for compensation only if the owner became the owner before the
regulation was "first enforced or applied" as to any property subject to the
regulation.(e) The phrase "continues to apply to the
property" means that the regulation is still in general legal effect and is
capable of being enforced as to the property either by the government or, where
the law includes a means for a third party to require compliance with the
regulation, by a third party.(f) Measure 7 requires
compensation only to the extent a regulation actually restricts the use of
private real property and that restriction reduces the value of that property.
If a regulation requires a property owner to apply to the government for
authorization for the desired use of the property, the owner may seek
compensation under Measure 7 at any time, but the decision when to file a claim
may affect the extent of
289 actual restrictions and thus the amount of compensation
that would be due. For example, if a regulation, on its face, definitively
prohibits particular uses, limits uses or imposes...
To continue reading
Request your trial