Resolution No. 4926 - Laserfiche WebLink

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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. Measure 37 provided that a property owner might have a valid claim if a public entity "enacts or enforces a new land use regulation or enforces 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, 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 measure provided that a property owner had a valid claim if a public body "enforces a land use regulation enacted prior to December 2,2004 . . .." By using the term "enforces" Measure 37 clearly contemplated government action enforcing a regulation after 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 defacto land use regulations. Measure 37 defines "land use regulation" as "[l]ocal government comprehensive plans, zoning ordinances, land division ordinances, and