Item 3: Wiper Inc. Measure 37 Claim

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and enforcement of a land use regulation, and the state has clearly rejected such a distinction. Second, the City’s interpretation of Measure 37 as related to the Wiper claim is inconsistent with the City’s previous decisions on the Lane Plywood and DMB Green claims. Third, the City’s interpretation of the language of Measure 37 is unreasonable under PGE v. BOLI. Fourth and finally, the City has enforced various land use regulations against the property through litigation. Each of these arguments is addressed below. a. No Other Jurisdiction Has Advanced Such an Argument The Reeder letter provides no support for its assertion that no other jurisdiction has made a distinction between “enactment” and “enforcement.” There are literally thousands of claims and decisions related to Measure 37, and the letter does not purport to review all of those to determine whether such a distinction was made. The Reeder letter also references two decisions on two claims by the State Department of Land Conservation and Development (DLCD) and asserts that the decisions show that the state “clearly rejects” the Report and Recommendation’s distinction between enactment and enforcement of a land use regulation. Claimant misreads the referenced DLCD decisions. In neither decision did DLCD explicitly reject the distinction made by the Report and Recommendation. Most importantly, the Reeder letter fails to explain why interpretations by other jurisdictions or DLCD are relevant to how a court would interpret Measure 37. And, as explained below, the plain language of the measure demonstrates that such a distinction exists. b. Previous Waivers The Reeder letter asserts that the City’s differentiation between enactment and enforcement of a land use regulation is inconsistent with its previous decisions related to the Lane Plywood and DMB Green claims. Not only are the situations different, but even if they were not, the prior decisions would not be controlling. The situations are different because in the prior situations, the City concluded that actions had been taken that would constitute some level of enforcement. Here, the claimant has failed to provide any evidence of any enforcement following the effective date of measure 37, which is what measure 37 requires. c. Meaning of “Enforce” Claimant’s argument that the mere existence of a land use regulation constitutes “enforcement” of that regulation cannot stand in light of the plain language of Measure 37. enacts or Measure 37 provided that a property owner might have a valid claim if a public entity “ enforcesnewenforces a land use regulation or a land use regulation enacted prior to [the effective date of Measure 37].” If the mere existence of a land use regulation was sufficient, as claimant asserts, then Measure 37 would not have drawn the distinction between “new” regulations, and those enacted prior to the effective date of Measure 37. Claimant’s interpretation of Measure 37 gives no effect to that distinction or the words actually used in the measure. d. Enforcement through Litigation Finally, Claimant asserts that the City has in fact enforced land use regulations on the subject property through conditional use permit CU 81-6, a modification of CU 81-6, MD 95-13,