Item 3: Measure 37 Claim (Wiper)

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Claimant is legally bound to undertake development consistent with its approved CUP. Claimant voluntarily entered into that agreement. Because the CUP agreement runs with the land, the obligation to undertake development of the subject property consistent with the approved CUP will continue to exist even if the City waived its entire land use code. Consequently, it is not the City’s regulations that restrict Claimant’s use of the property covered by the CUP; instead, it is the CUP itself. The “land use regulations” that are the subject of the claim are not creating a restriction on use of the subject property. To the extent that there is any reduction in the value of the subject property, the reduction is caused by the development plans that Claimant submitted to the City, which the City approved, and that were then formalized by the CUP agreement that Claimant signed. Claimant also failed to acknowledge its dedication of the subject property to the public for cemetery uses. Until the cemetery dedication is removed, the dedication itself creates a restriction on the use of the subject property, independent of the City’s land use code. State statutes control the dedication of property for cemetery use; ORS 97.330 and 97.440 require that property that has been dedicated to cemetery purposes shall be held, occupied and used exclusively for cemetery purposes. Claimant has not included those state statutes in its claim, and the City could not waive the requirements of state statutes anyway. To the extent that restriction of the subject property to cemetery uses decreases the value of the property, that reduction in value is the result of Claimant’s dedication of the property to cemetery use, rather than the City’s land use code. With respect to the “new” land use regulation – the /WR Water Resources Conservation Overlay Zone – Claimant does not provide an accounting to show the effect of the overlay zone on the property’s value. There is no evidence that this natural resource protection reduced the value of the property. The overlay zone restricted uses on only a portion of the property, but did not restrict the overall use of the property. Therefore, it is not clear that the /WR Water Resources Conservation Overlay Zone restricted the use of the property in the way anticipated by Measure 37, or that it reduced the overall value of the property. Claimant alleges that the land use regulations identified in the claim collectively have caused a diminution in value of the subject property in the amount of $3,520,000. As noted above, Claimant included in its claim a number of regulations that are not “land use regulations” for purposes of Measure 37. Of those that did qualify, it is not clear from the claim which, if any, provisions of the Eugene Code, the Metro Plan, or any of the other challenged regulations “restrict the use” and “reduce the value” of the subject property. To the extent the challenged both regulations did not reduce the value and restrict the use of the subject property, the claim lacked merit. E. Exemptions. A Measure 37 claim was invalid to the extent that one or more of the claim’s challenged regulations fell within one of the following exemptions under the Measure: 1) regulations adopted before the claimant acquired the property; 2) regulations adopted to protect the public health and safety; 3) regulations adopted to prevent nuisances; or 4) regulations adopted to comply with federal law. At the time Claimant acquired the subject property, there were no land Page 6 of 7