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B. WORK SESSION: New Land Use Regulations and Ballot Measure 37 The council was joined for the item by Planning and Development Director Susan Muir. Ms. Muir recalled the council’s adoption of an ordinance to allow the City to process claims filed under Ballot Measure 37, adding that as of 3 p.m. no Ballot Measure 37 claims had been received by the City of Eugene. She briefly overviewed the adopted process, which called for the City Manager to review submitted claims and make an initial recommendation to the City Council. If the manager recommended the claim be denied and no councilor disagreed, the denial would stand. If a councilor objected or the initial staff recommendation was not to deny the claim, staff would conduct an investigation and make a recommendation to the City Council. Ms. Muir said that during the development of the Goal 5 protection ordinance, staff considered Ballot Measure 37 as it applied to the new land use regulations, and developed a decision tree for a variance process that was modeled on the Type III process. Staff would make a recommendation regarding a claim to the Hearings Official with an appeal right to the Planning Commission. She said the commission and the council had both expressed concern about that approach, so staff worked on another approach that provided for the Planning Commission to be the initial decision maker, with the potential of an appeal going to the City Council. City Attorney Glenn Klein was also present for the item. He asked the council first to consider whether it wanted something in the Land Use Code outside the existing Ballot Measure 37 claims process, such as a variance process. If so, what would the criteria for such a process be, and what should the process look like? In regard to the first question, Mr. Klein suggested the City would be in a better position if it adopted something in addition to the existing claims process. Mr. Klein reminded the council that the existing claims process and ordinance were developed as a result of Ballot Measure 37, which stipulated that governments could adopt such a claims processing ordinance or provisions, but those procedures were not a prerequisite to a property owner going to court for a remedy if, after 180 days after a claim was filed, a regulation was still in force as it regarded their property. He said that some might argue part of the existing claims process could be enforced, but he did not know to what extent as those issues were just beginning to be litigated. Mr. Klein said that what staff was trying to accomplish was to make it clear that a height limit, for example, would not constitute a restriction on use for purposes of Ballot Measure 37 until someone went through the new variance process staff was recommending. He said that the advantage to the City was that the approach made it more likely that the City would be able to enforce the application requirements and get the issues resolved without the risk that, should the property owner eventually prevail, he or she would receive attorney fees as was the case in the Ballot Measure 37 claims processing ordinance. Mr. Klein suggested that, given that the staff recommendation was based on a desire to avoid creating new Ballot Measure 37 claims, the criteria should be tied to the measure. In other words, if a property owner did not have a valid Ballot Measure 37 claim, he or she would not be entitled to the variance. In regard to the process, he recommended that applications be directed toward the Planning Commission accompanied by a staff recommendation. The Planning Commission would make a decision on the application, which would be final unless a councilor or the mayor wished to review the decision. Mr. Klein further recommended that the proposed variance process be applied to any regulations, particu- larly new regulations, to avoid the unnecessary creation of Ballot Measure 37 claims. MINUTES—Eugene City Council October 10, 2005 Page 3 Work Session