Item B: Brown Measure 37 Claim - Laserfiche WebLink

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A “land use regulation” gives rise to a Measure 37 claim only if the regulation would “restrict the use” of private property and have the effect of reducing the fair market value of property. The specific regulations which the claimant states have restricted use of the property are EC 9.4530(3) and Map 9.4510 from the /TD Transit Oriented Development overlay zone. These regulations generally restrict the amount of floor area that can be constructed on a property by implementing a minimum FAR. Claimant did not submit an appraisal. However, Claimant asserts that the difference in cost of construction versus value of the property is approximately $200,000.00. This number is based on Claimant’s cost estimates around construction in compliance with the 1.0 FAR. City staff do not have sufficient evidence to conclude that the reduction in value of the property is equal to $200,000.00. However, based on staff’s conversations with an independent and licensed appraiser, the City Manager concludes that there is a reduction in value. According to appraiser, the fair market value of a relatively small- size lot will be less with a minimum FAR of 1.0 than it would be with an FAR of .65. The appraiser indicated that for larger lots, or lots in different locations (for example, outside the downtown core), such a reduction in value may not occur. But for this lot, it was his opinion that there is a reduction in value. E. Exemptions. Finally, a Measure 37 claim is not valid to the extent that one or more of the challenged land use regulations fall within one of the five exemptions under the Measure. Regulations adopted to protect the public health and safety, prevent nuisances, or comply with federal law are exempt under Measure 37, even if they otherwise constitute “land use regulations” that “restrict the use” and “reduce the fair market value” of property. This claim is not subject to any of the five exemptions. IV. CONCLUSION AND RECOMMENDATION Based on the analysis above, the City Manager has determined that the subject Measure 37 claim is valid. In lieu of compensation the City Manager is recommending approval of a modification of the FAR regulation, EC 9.4530(3) and Map 9.4510 to allow Claimant to develop the subject property as permitted under previous regulations. Specifically, it is recommended that the FAR regulation be modified from 1.0 FAR to .65 FAR for the subject property. (It should be noted that, since no formal development application has been filed, the City has not conducted an exhaustive evaluation of all the regulations that may apply at the time the owner applies for a building permit. The additional regulations that will apply at that time are typical of new construction and development on the lot would be subject to all other applicable provisions.) Because the City Manager is recommending that the Council grant a waiver, and the Code requires a public hearing before the Council decides whether to grant a waiver, this claim has been scheduled for a public hearing on March 12, 2007. 4