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HomeMy WebLinkAboutItem 3: Wiper Inc. Measure 37 Claim ECC UGENE ITY OUNCIL AIS GENDA TEM UMMARY Action: Charles Wiper, Inc. Measure 37 Claim (M37 06-4) Meeting Date: February 11, 2008 Agenda Item Number: 3 Department: Planning and Development Staff Contact: Gabe Flock www.eugene-or.gov Contact Telephone Number: 541/682-5697 ISSUE STATEMENT The council is scheduled to take action on the Measure 37 claim submitted by Charles Wiper, Inc. (M37 06-4). A Lane County Circuit Court order requires council action on this claim by February 11, 2008. BACKGROUND The City Council held a public hearing on this Measure 37 claim on January 28, 2008. Public testimony was received from the applicant’s representatives in support of the claim, and several neighboring residents in opposition to the claim. The council also agreed to extend the period of time for submittal of written testimony through February 4, 2008. Additional testimony received after the public hearing (but prior to close of the record) is attached for council consideration, as requested. Staff response to council questions asked at the public hearing, as well as response to written testimony submitted by the claimant’s representatives, is also attached. Background information, including the City Manager’s Report and Recommendation, was provided as part of the council packet for the previous public hearing. A copy of the Measure 37 claim, along with other documents and information related to the issues in the claim, including the August 31, 1995, Findings of Hearings Official for Rest-Haven Memorial Park (CU 95-2) and the 1998 Conditional Use Agreement between Charles Wiper III and the City of Eugene, may be found in a notebook that has been placed in the City Manager’s Office. In the interest of conserving paper, copies of the written testimony received by the council through the date of the public hearing on this matter, including the written testimony submitted by the claimant on the date of the public hearing, have not been attached to the AIS. Copies of written testimony are available in the City Manager’s Office. The claim file is also available for public inspection by contacting Gabe Flock, Senior Planner, at 682-5697. RELATED CITY POLICIES Ordinance No. 20331, concerning real property compensation, is related to this claim. COUNCIL OPTIONS By order of the Lane County Circuit Court, the council is required to adopt a resolution approving or denying the claimant’s Measure 37 claim, by February 11, 2008. F:\CMO\2008 Council Agendas\M080211\S0802113.DOC CITY MANAGER’S RECOMMENDATION The City Manager recommends denying the Measure 37 claim submitted by Charles Wiper, Inc. in consideration of testimony received and based upon the City Manager’s Report and Recommendation. SUGGESTED MOTION Move to adopt Resolution 4926 denying a Measure 37 claim of Charles Wiper, Inc. for property identified as Assessor’s Map 18-03-18-00, Tax Lot 300. ATTACHMENTS A. Proposed resolution denying claim B. Staff response to council questions and issues raised in public testimony C. Written testimony received after public hearing FOR MORE INFORMATION Staff Contact: Gabe Flock Telephone: 541/682-5697 E-mail: gabriel.flock@ci.eugene.or.us F:\CMO\2008 Council Agendas\M080211\S0802113.DOC ATTACHMENT A RESOLUTION NO. __________ A RESOLUTION DENYING A MEASURE 37 CLAIM OF CHARLES WIPER, INC. FOR PROPERTY IDENTIFIED AS ASSESSOR’S MAP 18- 03-18-00, TAX LOT 300. The City Council of the City of Eugene finds that: A. Charles Wiper, Inc. (Claimant) submitted a claim to the City under ORS 197.352 (Ballot Measure 37 (2004)) seeking either a waiver of regulations or compensation for alleged reduction in fair market value to the property identified as Assessor’s Map 18-03-18-00, Tax Lot 300. The property consists of approximately 71.6 acres, 20.5 of which are developed for cemetery purposes and known as Rest-Haven Memorial Park; the remainder of the subject property is vacant. B. Claimant seeks waiver of any and all land use regulations that restrict the use of the property, including: Eugene Code Chapters 6 and 9; the Eugene-Springfield Metropolitan Area General Plan (Metro Plan); all relevant refinement plans, such as the South Hills Study, TransPlan, and the Eugene-Springfield Metropolitan Area Public Facilities and Services Plan; all relevant land use policies, such as the Housing Dispersal Policy; all relevant studies and reports, such as various Goal 5 studies, the Eugene-Springfield Metropolitan Area Residential Land and Housing Study and the Eugene-Springfield Metropolitan Area Public Facilities Plan Technical Background Report; all implementing regulations and standards, such as the Stormwater Manual; and all restrictions and conditions included in the Conditional Use Permit (CUP) currently applicable to the subject property. Claimant alleges that the value of its real property has been diminished by $3,520,000 as a result of application of restrictive land use regulations to the property by the City of Eugene. C. This claim was scheduled for a public hearing before the Council in May 2007. Shortly before the date scheduled for that hearing the Legislature amended Measure 37 to extend the time for acting on claims. In June of 2007, the Legislature referred to the voters a measure to revise Measure 37. The referral, Measure 49, was approved by the voters in November 2007 and became effective December 6, 2007. On December 26, 2007 the Lane County Circuit Court ordered the City Council to adopt a resolution approving or denying this claim, and to do so based on Measure 37 as it existed on May 30, 2007 without taking into consideration the provisions of Measure 49. D. The City Manager has caused an investigation of the claim to be made and has submitted to the City Council a Report and Recommendation on the claim. Based on the analysis and discussion set forth in the Report and Recommendation, the City Manager recommends denial of the claim. Resolution - 1 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EUGENE, a Municipal Corporation of the State of Oregon, as follows: Section 1. Based on the above findings, the analysis, findings and conclusions contained in the Report and Recommendation of the City Manager, and the additional findings contained in Attachment A to this Resolution, all of which are adopted and incorporated herein, the City Council concurs with the recommendation of the City Manager and denies the Measure 37 Claim of Charles Wiper, Inc. for the property identified as Assessor’s Map 18-03-18-00, Tax Lot 300. Section 2. A copy of this Resolution shall be forwarded to Charles Wiper, Inc., at its mailing address of: Rohn Roberts and Michael Reeder, Arnold Gallagher Saydack Percell Roberts & Potter PC, 800 Willamette Street, Suite 800, Eugene, Oregon 97401. Section 3. This Resolution shall become effective immediately upon its adoption. The foregoing Resolution adopted the ____ day of February, 2007. __________________________________________ City Recorder Resolution - 2 ATTACHMENT A - II ADDITIONAL FINDINGS IN SUPPORT OF DECISION OF CITY COUNCIL DENYING WIPER MEASURE 37 CLAIM 1. Land Use Regulations The Reeder Letter asserts that the city manager’s interpretation of the term “land use regulation” under Measure 37 is under inclusive. The plain language of Measure 37 limited the definition of “land use regulation” as applied to local governments, to “[l]ocal government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances.” Measure 37 did not create an entitlement to relief for reduction in property values caused by laws and regulations that are not “land use regulations.” To the extent that Claimant’s claim is based on those provisions of the Eugene Code or other regulations or provisions which did not constitute land use regulations under Measure 37, the claim lacks merit. 2. Enactment or Enforcement The Reeder letter asserts that the City’s interpretation of the plain language of Measure 37 fails for four reasons. First, no other jurisdiction has made the distinction between enactment and enforcement of a land use regulation, and the state has clearly rejected such a distinction. Second, the City’s interpretation of Measure 37 as related to the Wiper claim is inconsistent with the City’s previous decisions on the Lane Plywood and DMB Green claims. Third, the City’s interpretation of the language of Measure 37 is unreasonable under PGE v. BOLI. Fourth and finally, the City has enforced various land use regulations against the property through litigation. Each of these arguments is addressed below. a. No Other Jurisdiction Has Advanced Such an Argument The Reeder letter provides no support for its assertion that no other jurisdiction has made a distinction between “enactment” and “enforcement.” There are literally thousands of claims and decisions related to Measure 37, and the letter does not purport to review all of those to determine whether such a distinction was made. The Reeder letter also references two decisions on two claims by the State Department of Land Conservation and Development (DLCD) and asserts that the decisions show that the state “clearly rejects” the Report and Recommendation’s distinction between enactment and enforcement of a land use regulation. Claimant misreads the referenced DLCD decisions. In neither decision did DLCD explicitly reject the distinction made by the Report and Recommendation. Most importantly, the Reeder letter fails to explain why interpretations by other jurisdictions or DLCD are relevant to how a court would interpret Measure 37. And, as explained below, the plain language of the measure demonstrates that such a distinction exists. 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. enacts or Measure 37 provided that a property owner might have a valid claim if a public entity “ enforcesnewenforces a land use regulation or 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 enforces measure provided that a property owner had a valid claim if a public body “ a land use regulation enacted prior to December 2, 2004 . . . .” By using the term “enforces” Measure 37 after clearly contemplated government action enforcing a regulation 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 de facto land use regulations. Measure 37 defines “land use regulation” as “[l]ocal government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances.” The CUP is not a comprehensive plan, zoning ordinance, land division ordinance, nor a transportation ordinance. As acknowledged by Claimant, the CUP is in fact a contract. Near the beginning of the conditional use agreement, Claimant agreed, in part, that: Development of the project in strict compliance with the plans as submitted “ and approved is necessary to protect the public health, safety and welfare. Therefore, the public interest requires the City obtain from the Developer an enforceable covenant to develop in accordance with the plans as submitted and approved.” (Emphasis added.) Near the end of the conditional use agreement, Claimant also agreed that: “This Agreement shall be binding upon the heirs, executors, administrators and assigns of both parties and is a condition and covenant running with the land and binding upon the above-described areas of real property.” Claimant next argues that even if the CUP is not a land use regulation, it may some day be amended or rescinded, at which time the City’s land use regulations will return to force and restrict the use of the subject property. While that may be a possibility, Claimant has no right to have the agreement amended. In fact, Claimant obtained a financial benefit from the conditional use permit and agreement, and is now seeking to keep the benefit of the agreement without having to honor the burden of the agreement. Measure 37 does not apply to such agreements. Claimant also argues that the CUP does not restrict 15 acres of the property. Claimant ignores not only the specific provisions of the agreement in making that argument, but also the “quid pro quo” to which Claimant agreed in order to get the benefits that Claimant sought from the CUP. When the hearings official reviewed and ultimately approved the plans and application Claimant submitted in order to obtain the conditional permit, the hearings official explained that he was approving the CUP, in part, because of the buffer that would be left between the cemetery and the neighbors – what the Claimant here is calling the “unplanned” acres. The hearings official wrote: “One approach might be to require as a condition of approval the retention of a 100 foot buffer area along the entire southern boundary but this may not be necessary with more detail made available concerning the vegetation that exists and will be retained in the buffer area and proposed location of the tombs and fence. Without that information, if the buffer is to be less than 100 feet in depth, it is impossible to determine whether the proposed use will be compatible with the adjacent residences. “* * * * [T]o be reasonably compatible, the cemetery use must be designed to recognize the existing wooded character of this area of Eugene to the extent of allowing a meaningful buffer area between the cemetery use and the residential uses. “In that the approval is for a two phased development, with the southern portion being developed only after development of the area of the cemetery within the proposed roads, there will be adequate time to address the details of the buffer area and for the applicant to seek approval of a plan in that regard.” In light of those concerns related to compatibility with the adjacent properties, the hearings official imposed as a condition of approval a requirement that the proposed buffer zone in the southern portion of the site be a minimum of 75 feet in width. That condition of approval was carried forward in the Conditional Use Agreement that Claimant signed. Thus, contrary to Claimant’s suggestion that 15 acres of property are not covered by the CUP, all of the property is covered. Moreover, if one compares the tax lot information included with the measure 37 claim, to the tax lot information included in the CUP materials, it is clear that all of the property covered by the measure 37 claim is included within, and restricted by, the CUP that Claimant applied for and voluntarily signed. 4. Reduction in Value Claimant asserts that the appraisal included in the claim is valid and was performed by qualified and licensed appraisers. The appraisal, however, is based on removal of all of the regulations included in the claim from the subject property so that it has the same potential for development today as it had on Claimant’s date of acquisition in 1929. As noted above and in the Report and Recommendation, not all of the complained of regulations are “land use regulations” under Measure 37; some are exempt; and some do not meet other requirements of Measure 37. Unless a land use regulation meets every requirement under Measure 37, the regulation does not give rise to a Measure 37 claim. The appraisal evidence submitted by Claimant is based on the assumption that every regulation that applies to the property is removed, including those regulations that, for example, protect public health and safety. The true reduction in value, if any, as the result of regulations that actually meet all of Measure 37’s requirements is not discernable from either the claim or the appraisal. 5. Exemptions Although the wording of this section is confusing, Claimant seems to be asserting that even if some of the challenged regulations do fall into Measure 37’s exemptions (prohibition of public nuisances, protection of health and safety, compliance with federal law, etc.) the remainder of the claim is valid. Claimant fails to analyze the regulations included within its claim to determine or explain how the regulations avoid those exemptions. Claimant also fails to explain why the CUP, even assuming that it would meet the definition of a “land use regulation”, would not be exempt given the language in the CUP that states that development in strict compliance with the CUP “is necessary to protect the public health, safety, and welfare.” ATTACHMENTB RCQ ESPONSES TO OUNCIL UESTIONS 1.At the public hearing concerning the Wiper Measure 37 claim on January 28, 2008, members of the public who live near the subject property testified that they paid extra for their property because they liked the neighborhood and were assured by Mr. Wiper that the cemetery would remain a cemetery and the vegetative buffer surrounding the cemetery would remain in place. Councilor Clark asked to whom the neighbors had “paid extra”? Was the money paid to Mr. Wiper? Councilor Clark’s question was answered through an e-mail exchange, the contents of which are included in the council packet in Attachment C to the AIS. 2.Also at the public hearing on January 28, Councilor Bettman observed that persons who have buried their loved ones at Rest-Haven probably have the expectation that it will remain a cemetery in perpetuity and asked whether any contractual or legal barriers to developing the property exist. State law severely restricts the use of property which includes interred remains. The entire Rest-Haven property was dedicated to the public as a cemetery property many years ago. The removal of the cemetery dedication is not within the City’s jurisdiction. City staff is not privy to any conditions of sale or contractual agreements related to the purchase of cemetery plots or internment activities at Rest-Haven. RACRL ESPONSES TO LLEGATIONS ONTAINED IN THE EEDER ETTER SUBMITTED TO COUNCIL J28,2008,WM37CPH AT THE ANUARY IPER EASURE LAIM UBLIC EARING For ease of reference the responses have been structured in the same format as the Reeder Letter. Many of the arguments raised in the Reeder letter were addressed in the City Manager’s Report and Recommendation, and will not be repeated here. 1. Land Use Regulations The Reeder Letter asserts that the city manager’s interpretation of the term “land use regulation” under Measure 37 is under inclusive. The plain language of Measure 37 limited the definition of “land use regulation” as applied to local governments, to “[l]ocal government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances.” Measure 37 did not create an entitlement to relief for reduction in property values caused by laws and regulations that are not “land use regulations.” To the extent that Claimant’s claim is based on those provisions of the Eugene Code or other regulations or provisions which did not constitute land use regulations under Measure 37, the claim lacks merit. 2. Enactment or Enforcement The Reeder letter asserts that the City’s interpretation of the plain language of Measure 37 fails for four reasons. First, no other jurisdiction has made the distinction between enactment and enforcement of a land use regulation, and the state has clearly rejected such a distinction. Second, the City’s interpretation of Measure 37 as related to the Wiper claim is inconsistent with the City’s previous decisions on the Lane Plywood and DMB Green claims. Third, the City’s interpretation of the language of Measure 37 is unreasonable under PGE v. BOLI. Fourth and finally, the City has enforced various land use regulations against the property through litigation. Each of these arguments is addressed below. a. No Other Jurisdiction Has Advanced Such an Argument The Reeder letter provides no support for its assertion that no other jurisdiction has made a distinction between “enactment” and “enforcement.” There are literally thousands of claims and decisions related to Measure 37, and the letter does not purport to review all of those to determine whether such a distinction was made. The Reeder letter also references two decisions on two claims by the State Department of Land Conservation and Development (DLCD) and asserts that the decisions show that the state “clearly rejects” the Report and Recommendation’s distinction between enactment and enforcement of a land use regulation. Claimant misreads the referenced DLCD decisions. In neither decision did DLCD explicitly reject the distinction made by the Report and Recommendation. Most importantly, the Reeder letter fails to explain why interpretations by other jurisdictions or DLCD are relevant to how a court would interpret Measure 37. And, as explained below, the plain language of the measure demonstrates that such a distinction exists. 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. enacts or Measure 37 provided that a property owner might have a valid claim if a public entity “ enforcesnewenforces a land use regulation or 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 enforces measure provided that a property owner had a valid claim if a public body “ a land use regulation enacted prior to December 2, 2004 . . . .” By using the term “enforces” Measure 37 after clearly contemplated government action enforcing a regulation 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 de facto land use regulations. Measure 37 defines “land use regulation” as “[l]ocal government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances.” The CUP is not a comprehensive plan, zoning ordinance, land division ordinance, nor a transportation ordinance. As acknowledged by Claimant, the CUP is in fact a contract. Near the beginning of the conditional use agreement, Claimant agreed, in part, that: Development of the project in strict compliance with the plans as submitted “ and approved is necessary to protect the public health, safety and welfare. Therefore, the public interest requires the City obtain from the Developer an enforceable covenant to develop in accordance with the plans as submitted and approved.” (Emphasis added.) Near the end of the conditional use agreement, Claimant also agreed that: “This Agreement shall be binding upon the heirs, executors, administrators and assigns of both parties and is a condition and covenant running with the land and binding upon the above-described areas of real property.” Claimant next argues that even if the CUP is not a land use regulation, it may some day be amended or rescinded, at which time the City’s land use regulations will return to force and restrict the use of the subject property. While that may be a possibility, Claimant has no right to have the agreement amended. In fact, Claimant obtained a financial benefit from the conditional use permit and agreement, and is now seeking to keep the benefit of the agreement without having to honor the burden of the agreement. Measure 37 does not apply to such agreements. Claimant also argues that the CUP does not restrict 15 acres of the property. Claimant ignores not only the specific provisions of the agreement in making that argument, but also the “quid pro quo” to which Claimant agreed in order to get the benefits that Claimant sought from the CUP. When the hearings official reviewed and ultimately approved the plans and application Claimant submitted in order to obtain the conditional permit, the hearings official explained that he was approving the CUP, in part, because of the buffer that would be left between the cemetery and the neighbors – what the Claimant here is calling the “unplanned” acres. The hearings official wrote: “One approach might be to require as a condition of approval the retention of a 100 foot buffer area along the entire southern boundary but this may not be necessary with more detail made available concerning the vegetation that exists and will be retained in the buffer area and proposed location of the tombs and fence. Without that information, if the buffer is to be less than 100 feet in depth, it is impossible to determine whether the proposed use will be compatible with the adjacent residences. “* * * * [T]o be reasonably compatible, the cemetery use must be designed to recognize the existing wooded character of this area of Eugene to the extent of allowing a meaningful buffer area between the cemetery use and the residential uses. “In that the approval is for a two phased development, with the southern portion being developed only after development of the area of the cemetery within the proposed roads, there will be adequate time to address the details of the buffer area and for the applicant to seek approval of a plan in that regard.” In light of those concerns related to compatibility with the adjacent properties, the hearings official imposed as a condition of approval a requirement that the proposed buffer zone in the southern portion of the site be a minimum of 75 feet in width. That condition of approval was carried forward in the Conditional Use Agreement that Claimant signed. Thus, contrary to Claimant’s suggestion that 15 acres of property are not covered by the CUP, all of the property is covered. Moreover, if one compares the tax lot information included with the measure 37 claim, to the tax lot information included in the CUP materials, it is clear that all of the property covered by the measure 37 claim is included within, and restricted by, the CUP that Claimant applied for and voluntarily signed. 4. Reduction in Value Claimant asserts that the appraisal included in the claim is valid and was performed by qualified and licensed appraisers. The appraisal, however, is based on removal of all of the regulations included in the claim from the subject property so that it has the same potential for development today as it had on Claimant’s date of acquisition in 1929. As noted above and in the Report and Recommendation, not all of the complained of regulations are “land use regulations” under Measure 37; some are exempt; and some do not meet other requirements of Measure 37. Unless a land use regulation meets every requirement under Measure 37, the regulation does not give rise to a Measure 37 claim. The appraisal evidence submitted by Claimant is based on the assumption that every regulation that applies to the property is removed, including those regulations that, for example, protect public health and safety. The true reduction in value, if any, as the result of regulations that actually meet all of Measure 37’s requirements is not discernable from either the claim or the appraisal. 5. Exemptions Although the wording of this section is confusing, Claimant seems to be asserting that even if some of the challenged regulations do fall into Measure 37’s exemptions (prohibition of public nuisances, protection of health and safety, compliance with federal law, etc.) the remainder of the claim is valid. Claimant fails to analyze the regulations included within its claim to determine or explain how the regulations avoid those exemptions. Claimant also fails to explain why the CUP, even assuming that it would meet the definition of a “land use regulation”, would not be exempt given the language in the CUP that states that development in strict compliance with the CUP “is necessary to protect the public health, safety, and welfare.”