Item 3: Wiper Inc. Measure 37 Claim

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“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 true reduction in value, if any, as the result of regulations that actually meet all of Measure 37’s requirements is not discernable from either the claim or the appraisal. 5. Exemptions Although the wording of this section is confusing, Claimant seems to be asserting that even if some of the challenged regulations do fall into Measure 37’s exemptions (prohibition of public nuisances, protection of health and safety, compliance with federal law, etc.) the remainder of the claim is valid. Claimant fails to analyze the regulations included within its claim to determine or explain how the regulations avoid those exemptions. Claimant also fails to explain why the CUP, even assuming that it would meet the definition of a “land use regulation”, would not be exempt given the language in the CUP that states that development in strict compliance with the CUP “is necessary to protect the public health, safety, and welfare.”