Agenda Packet 9-24-18 Meeting - Laserfiche WebLink

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2 Staff claims that: "There are important differences between the claims." (See page 2 of memo.) However, the specific "difference" cited is a "difference without a legal distinction." Furthermore, the provided basis for the interpretation does not follow the statutory rules of interpretation and relies on a "textual" argument that isn't the determinant element of the criterion. (Specifically, the staff considered the different definitions of "restrict" versus "prohibit," but that's not the issue, as I explain. The issue is the meaning of "residential use," as I also explain. Glenn Klein's advice relied on the latter, as well.) I understand that Glenn Klein is still available for limited assistance to the City Council. What I am requesting is that you solicit Glenn's opinion on this case solely with respect to the proper interpretation of ORS 195.305(1), “if a public entity enacts one or more land use regulations that restrict the residential use of private real property…the owner of the property shall be entitled to just compensation” and ORS 195.310(1)(c) providing that a person may file a M49 claim if “the person’s desired use of the property is restricted by one or more land use regulations.” (Emphasis added.) I've attached a rebuttal to the staff's new interpretation. My analysis follows the proper structure for statutory construction, consistent with Glenn's former interpretation. I've also had lengthy discussions with knowledgeable DLCD staff, and they state they know of no cases or legislative history that would support the staff's new interpretation. I've also discussed this with my land use attorney, and he believes Glenn's interpretation is sound. As my testimony states, the implications of the staff's extremely broad interpretation would have drastic, far-reaching effect on the Council's ability to adopt future code amendments that added or increased limitations on development (e.g., to implement the Envision Eugene policy of "protecting neighborhood livability"). The question of which is the proper interpretation of the pertinent M49 statutory provision is far more important than just one M49 waiver. Accordingly, I'm requesting that, as the City's chief legal officer, you do two things to help ensure that City Council makes the correct decision: a) Solicit Glenn Klein's (limited) advice on the issue of "residential use"; and b) Provide the Council with a frank explanation of the potential impacts on future code amendments if the Council were to adopt the Planning staff's new interpretation. If you would like to discuss this further, I would be happy to fill you in on what I have learned through my conversations mentioned above and researching the history of Measures 37 and 49. I would appreciate a reply either to me directly or to my City Councilor, Emily Semple. Thank you for you help. Paul Conte 1461 W. 10th Ave. Ward 1 _________________ Accredited Earth Advantage Sustainable Homes Professional September 24, 2018, Meeting - Item 3