Item 3: Wiper Inc. Measure 37 Claim

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and conditional use permit CU 95-2. Claimant also asserts that the City has enforced land use regulations against the subject property “in no less than two Court of Appeals cases and a variety of Land Use Board of Appeals (“LUBA”) cases.” This argument again ignores the actual words of Measure 37. For regulations that existed prior to the effective date of Measure 37, the enforces measure provided that a property owner had a valid claim if a public body “ a land use regulation enacted prior to December 2, 2004 . . . .” By using the term “enforces” Measure 37 after clearly contemplated government action enforcing a regulation December 2, 2004, the effective date of Measure 37. Action on the conditional use permits referred to in the letter took place well before December 2, 2004. All the decisions rendered in the litigation referred to by Claimant were also made before December 2, 2004. Thus, all of the “enforcement” actions referred to by Claimant took place before the effective date of Measure 37 and therefore do not constitute enforcement of a land use regulation under the plain language of the measure. 3. Restriction on Use: The Conditional Use Agreement Claimant argues that the conditional use permit or agreement (CUP) applicable to the property is a de facto land use regulation because it is the culmination of many land use regulations. The plain language of Measure 37 does not support Claimant’s argument. Measure 37 does not recognize de facto land use regulations. Measure 37 defines “land use regulation” as “[l]ocal government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances.” The CUP is not a comprehensive plan, zoning ordinance, land division ordinance, nor a transportation ordinance. As acknowledged by Claimant, the CUP is in fact a contract. Near the beginning of the conditional use agreement, Claimant agreed, in part, that: Development of the project in strict compliance with the plans as submitted “ and approved is necessary to protect the public health, safety and welfare. Therefore, the public interest requires the City obtain from the Developer an enforceable covenant to develop in accordance with the plans as submitted and approved.” (Emphasis added.) Near the end of the conditional use agreement, Claimant also agreed that: “This Agreement shall be 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.” Claimant next argues that even if the CUP is not a land use regulation, it may some day be amended or rescinded, at which time the City’s land use regulations will return to force and restrict the use of the subject property. While that may be a possibility, Claimant has no right to have the agreement amended. In fact, Claimant obtained a financial benefit from the conditional use permit and agreement, and is now seeking to keep the benefit of the agreement without having to honor the burden of the agreement. Measure 37 does not apply to such agreements. Claimant also argues that the CUP does not restrict 15 acres of the property. Claimant ignores not only the specific provisions of the agreement in making that argument, but also the “quid pro quo” to which Claimant agreed in order to get the benefits that Claimant sought from