Item 3: Wiper Inc. Measure 37 Claim

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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 Claimant next argues that even if the CUP is not a land use regulation, it may some day be amended or rescinded, at which time the City’s land use regulations will return to force and restrict the use of the subject property.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 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.