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process of changing land use regulations or granting variances or adjustments where authorized. Ballot Measure 37 said that notwithstanding the preemption, the measure would allow governments to waive regulations in a way consistent with the measure. To the degree the measure indicated the waiver was transferable, the City had the authority to do so. The City could not do more than the measure allowed. Ballot Measure 37 was not clear, but it still addressed the issue. How it addressed it was not clear until the courts rule. He continued to interpret the measure as precluding transferability. Responding to a question from Mr. Pap~, Mr. Klein said he did not know if the Attorney General's Office had been asked to provide an opinion on Ballot Measure 37. At this time, the office was not answering questions of a general nature or stating its opinion of the measure. He anticipated that mini-opinions would be provided to State agencies making inquiries, and those would largely be focused on process rather than the content of the measure. Mr. Kelly agreed with Mr. Klein's interpretation of Ballot Measure 37, which appeared to him to speak to the owner of the property at the time of the purchase. Mr. Kelly opposed the amendment because he supported the original text, which made it clear that the waiver allowed the owner to do what the owner wished to do under the regulations in place at the time of the purchase of the property. Plus, he believed the original text gave the council flexibility. He suggested that the council could adopt a resolution allowing transferability in a single case if the council decided such an action satisfied the public interest. Responding to a question from Ms. Taylor about the legality of allowing for transferability in a single case, Mr. Klein said he did not know because the measure was not clear on the issue. The legal effect of the amendment was the same as the initial language, because ultimately the decision would be made by the courts. He noted that Oregonians in Action believed that transferability was implied because the regulations in place previously would have allowed for transferability. Mayor Torrey indicated support for the amendment, terming it a commonsense approach that took the pressure off the City of Eugene and placed the burden of proof on the proponents of the measure. He said they should pay the legal costs associated with the challenge. He would be unable to support the main motion in the event of a tie if the amendment failed. Ms. Bettman was opposed to the amendment because it would make up for the mistakes made by the proponents of the measure. The ordinance would hand them the language they needed in the first place, and would produce an industry of opportunistic entities seeking out individuals owning property and encouraging them to file a Ballot Measure 37 claim. Mr. Kelly asked Mr. Klein to clarify that until the courts addressed the issue of transferability, the text in Ballot Measure 37 gave the City no guidance about the issue, leaving the council to decide what was meant by transferability on a claim-by-claim basis. Mr. Klein said the council could take that approach, but he had envisioned that in a typical situation, a claim would be filed and the council would decide against compensation and agree to waive a standard. The council would then adopt a resolution that included the provision on transferability, which was dependent on further interpretation by the courts. If the property owner making the claim was granted it and then transferred the property to a new owner who sought to develop it on the basis of the waiver, in the absence of further court direction, he would advise the Planning Division that the waiver did not cover the new owner. That would likely get the issue into court. However, Mr. Klein anticipated either legislative or court direction prior to that time. MINUTES--Eugene City Council November 24, 2004 Page 7 Work Session