Item 3: Measure 37 Claim (Wiper)

Home Browse Search

III. SUMMARY OF CITY MANAGER’S RECOMMENDATION Based on the analysis set forth in section IV below, the City Manager recommends denial of the claim. 1 Measure 37 generally granted a property owner the right to compensation (or waiver at the option of the government) for reduction in the value of their property caused by a land use regulation in existence as of the effective date of Measure 37 (December 2, 2004) as long as five substantive requirements were met. First, the regulation challenged must have been a “land use regulation” as that term was defined by Measure 37. Second, the public entity against which the claim was made must have enforced the regulation in some manner following the effective date of Measure 37. Third, the regulation must have restricted the use of private property. Fourth, the effect of the regulation must have been to cause a reduction in the fair market value of the property. Fifth, the regulation must not have fallen within one of Measure 37’s exemptions. As discussed below, Claimant identified, as regulations reducing the value of its property, the entire land use code, the Metro Plan, all relevant refinement plans, all relevant studies and reports, all implementing regulations and standards, and all restrictions and conditions included in the CUP currently applicable to the subject property. Claimant has not, however, identified which of these regulations are “land use regulations” as that term was defined by Measure 37. To the extent that Claimant’s claim was based on those provisions of the Eugene Code or other regulations which did not constitute “land use regulations” under Measure 37, the claim lacked merit. To the extent Claimant identified “land use regulations,” it failed to show that, following the effective date of Measure 37, such regulations had been enforced against Claimant’s property. Additionally, some of the regulations that are the subject of the claim fell within one or more of Measure 37’s exemptions, including the exemptions for regulations prohibiting certain public nuisances and regulations adopted to protect the public health and safety. Finally, Claimant is legally bound by a CUP, and by the Claimant’s dedication of the property for cemetery use, both of which restrict the use of the subject property independent of the City’s land use code. For these reasons, the City Manager recommends denial of the claim. IV. ANALYSIS OF CLAIM A. Ownership. Ballot Measure 37 provided for payment of compensation or relief from (waiver of) specific regulations for “owners” as that term was defined by the Measure. Ballot Measure 37, Section 11(C) defined “owner” as “the present owner of the property, or any interest therein.” It appears that Claimant is the owner of the subject property for purposes of Measure 37. Based on the information submitted by Claimant (warranty deeds 97741, 98026, 98027 and 98028) and information available in the Lane County Regional Land Information Database 1 In light of the court’s December 26, 2007, order requiring the Council to act on the claim based on Measure 37 as it existed on May 30, 2007, this report describes Measure 37’s provisions as they existed before the revisions effected by Measure 49. Many of those provisions, however, were changed by Measure 49, and therefore are not the law in effect today. Page 3 of 7