Item 3: Wiper Inc. Measure 37 Claim

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the CUP. When the hearings official reviewed and ultimately approved the plans and application Claimant submitted in order to obtain the conditional permit, the hearings official explained that he was approving the CUP, in part, because of the buffer that would be left between the cemetery and the neighbors – what the Claimant here is calling the “unplanned” acres. The hearings official wrote: “One approach might be to require as a condition of approval the retention of a 100 foot buffer area along the entire southern boundary but this may not be necessary with more detail made available concerning the vegetation that exists and will be retained in the buffer area and proposed location of the tombs and fence. Without that information, if the buffer is to be less than 100 feet in depth, it is impossible to determine whether the proposed use will be compatible with the adjacent residences. “* * * * [T]o be reasonably compatible, the cemetery use must be designed to recognize the existing wooded character of this area of Eugene to the extent of allowing a meaningful buffer area between the cemetery use and the residential uses. “In that the approval is for a two phased development, with the southern portion being developed only after development of the area of the cemetery within the proposed roads, there will be adequate time to address the details of the buffer area and for the applicant to seek approval of a plan in that regard.” In light of those concerns related to compatibility with the adjacent properties, the hearings official imposed as a condition of approval a requirement that the proposed buffer zone in the southern portion of the site be a minimum of 75 feet in width. That condition of approval was carried forward in the Conditional Use Agreement that Claimant signed. Thus, contrary to Claimant’s suggestion that 15 acres of property are not covered by the CUP, all of the property is covered. Moreover, if one compares the tax lot information included with the measure 37 claim, to the tax lot information included in the CUP materials, it is clear that all of the property covered by the measure 37 claim is included within, and restricted by, the CUP that Claimant applied for and voluntarily signed. 4. Reduction in Value Claimant asserts that the appraisal included in the claim is valid and was performed by qualified and licensed appraisers. The appraisal, however, is based on removal of all of the regulations included in the claim from the subject property so that it has the same potential for development today as it had on Claimant’s date of acquisition in 1929. As noted above and in the Report and Recommendation, not all of the complained of regulations are “land use regulations” under Measure 37; some are exempt; and some do not meet other requirements of Measure 37. Unless a land use regulation meets every requirement under Measure 37, the regulation does not give rise to a Measure 37 claim. The appraisal evidence submitted by Claimant is based on the assumption that every regulation that applies to the property is removed, including those regulations that, for example, protect public health and safety. The