Charles Wiper, Inc. v. City of Eugene

MEMORANDUM

We affirm the district court’s grant of summary judgment to the City of Eugene on Charles Wiper, Inc.’s procedural due process, substantive due process, and equal protection claims under 42 U.S.C. § 1983 .

Wiper’s application for benefits under Measure 37 did not create a protected property interest because the “nature and extent of the alleged entitlement [under Measure 37] are vague,” “indeterminate,” and subject to the “functional discretion” of the public entity evaluating its claim. See Doyle v. City of Medford, 606 F.3d 667, 675 (9th Cir.2010). Wiper has not established that it is entitled to benefits under Measure 37. Even if it were entitled to some benefits, the City could have awarded a Measure 37 waiver rather than pay just compensation, Or.Rev.Stat. § 197.352(8) (2005), and could have granted a materially different waiver than that sought by Wiper, see, e.g., Corey v. Dep’t of Land Conservation & Dev., 210 Or.App. 542 , 152 P.3d 933, 934 (2007). Alternatively, the City could have determined that Wiper was eligible for an award of just compensation, but then exercised its discretion to not use “available funds” to pay the award. See Or.Rev.Stat. §…