Item 3: Measure 37 Claim (Wiper)

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enforced the complained of land use regulations after the effective date of Measure 37 (December 2, 2004). If a regulation was enacted after the effective date of Measure 37, it is a “new” regulation and no enforcement by the City was necessary for a valid claim. In 2005, after the effective date of Measure 37, the City enacted the provisions of the /WR Water Resources Conservation Overlay Zone and applied it to the subject property. Ordinance No. 20351, enacting EC 9.4900 et seq, the /WR Water Resources Conservation Overlay Zone is a zoning ordinance and therefore constituted a “land use regulation” under Measure 37. Based on its date of passage, (after Measure 37’s effective date) Ordinance No. 20351 was a “new” land use regulation. The other regulations at issue were not “new regulations” because they were enacted before the effective date of Measure 37. Therefore, the claim was only valid as to a particular regulation (other than the /WR Water Resources Conservation Overlay Zone) if, following the passage of Measure 37, the City had enforced that regulation on the subject property. Following the effective date of Measure 37, the City had not enforced any land use regulations against the subject property. D. Restriction on use, reduction in value. A “land use regulation” gave rise to a Measure 37 claim only if the regulation both restricted the use and reduced the fair market value of private property. Claimant did not identify which of the provisions of Chapters 6 and 9 of the Eugene Code, the Metro Plan, refinement plans, relevant studies and reports, implementing regulations and standards, or restrictions and conditions included in the CUP applicable to the property, “restrict the use” and “reduce the value” of the subject property. As noted above, to qualify as a both valid claim, a challenged land use regulation must have restricted the use and reduced the value of Claimant’s property. With regard to the restriction on use requirement, Claimant failed to acknowledge that it was party to a legally binding Conditional Use Permit (CUP) agreement that, even in the absence of the regulations that are the subject of its claim, independently restricts the use of the subject property. On October 27, 1998, Charles Wiper III voluntarily signed an agreement formalizing the City’s approval of a master development plan (CUP) for the subject property. The agreement in strict compliance with the plans as submitted and binds Claimant to develop the project approved .As part of that CUP agreement, Mr. Wiper agreed that “All construction, development, improvement, landscaping, lighting, and design or construction and continuing maintenance activities in connection with this development are to be in compliance with this Agreement and the documents attached as exhibits.” The Agreement provides further that Mr. Wiper’s failure to develop in accordance with the Agreement shall constitute a breach of the Agreement, which can give rise to a lawsuit by the City for specific performance. The Agreement is “binding upon the heirs, executors, administrators, and assigns of both parties and is a condition and covenant running with the land and binding upon the above-described areas of real property.” Page 5 of 7