Item 6: Lane Plywood Measure 37 Claim

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Ballot Measure 37 provides for relief from (waiver of) specific laws or payment of compensation for (to) “owners” as that term is defined by the Measure. Ballot Measure 37, Section 11(C) defines “owner” as “the present owner of the property, or any interest therein.” LPI is the present owner of the property identified in the claim. B. “Land use regulations” Measure 37 requires compensation (or waiver) only for those regulations which constitute “land use regulations” as that term is defined by Measure 37. Measure 37 and other state land use laws define differently the phrase “land use regulations.” Measure 37 defines land use regulation, with respect to local governments, as “local government comprehensive plans, zoning ordinances, land division ordinances and transportation ordinances.” On the other hand, ORS 197.015(11) defines land use regulation as “any local government zoning ordinance, land division ordinance adopted under ORS 92.044 or 92.046 or similar general ordinance establishing standards for implementing a comprehensive plan.” This difference between Measure 37’s definition and the prior statutory definition – i.e., the omission in Measure 37 of the language underlined above – is significant. Existing state law and Measure 37 both include zoning ordinances and land division ordinances. Measure 37, however, does not include the language “or similar general ordinance establishing standards for implementing a comprehensive plan.” Because Measure 37 omits that language, while including the other language from ORS 197.015(11) relating to zoning ordinances and land division ordinances, a proper interpretation of Measure 37 limits “land use regulation” to zoning ordinances and land division ordinances (in addition to comprehensive plan provisions and transportation ordinances). LPI includes as part of its claim most of Chapter 9 of the Eugene Code, other parts of the Eugene Code that are incorporated by reference in provisions of Chapter 9, and the Metro Plan. Measure 37 defines “land use regulation” to include comprehensive plans, and consequently, to the extent that LPI’s claim is based on the Metro Plan, the claim meets this requirement. Measure 37, however, does not define “land use regulation” to include all land use code or other code provisions, but instead, only “zoning ordinances,” “land division ordinances” and “transportation ordinances.” Most of the regulations in Chapter 9, as well as the other Eugene Code provisions incorporated by reference into Chapter 9, do not constitute any of those types of ordinances. To the extent that LPI’s claim is based on those parts of Chapter 9 or other Eugene Code provisions, the claim lacks merit. C. Enforcement. Measure 37 states that a property owner has a claim if a public entity “enacts or enforces enforcesenacted prior to the effective date a new land use regulation or a land use regulation ” of Measure 37. With very few exceptions, all of the provisions of Chapter 9 and other parts of the Eugene Code and the Metro Plan were enacted prior to Measure 37. Therefore, the mere adoption or existence of those provisions is not enough to give rise to a Measure 37 claim. Instead, Measure 37 requires something more. Measure 37 requires that some type of “enforcement” take place. Since that has not happened, the claim must be denied. Page 7 of 9