Miller v Jones, 256 Or App 392 (2013), Sercombe, J. Plaintiffs brought a declaratory judgment action to determine the validity of an agreement they claimed created an easement for an irrigation pipeline through Defendants’ property. Defendants attempted to defeat that claim by asserting that the agreement between the previous property owners was not an easement but a “license” between the two previous property owners. Alternatively, the defendants argued that if the agreement were an easement, it was not appurtenant (i.e. the easement was not attached with ownership of the land), but rather personal; thus the right to use the easement did not transfer when the property was conveyed to plaintiffs. The court considered the plain language of the document and found that the agreement was indeed an easement because it “granted a right of one person to do certain acts on land of another” as it provided the defendants the right “to service and maintain” an existing underground irrigation pipeline on the property and “access [of the pipeline] through” the subject property. These provisions plainly created an easement granting rights on property of another. The court construed the plain language of the agreement, the use of the words consistent with easement language, and the purpose of the agreement and concluded that the agreement was an easement that attached to the land granting plaintiff the right to use, service and maintain its pipeline over defendants property.
Authors: Edward J. Sullivan and Carrie A. Richter
In the human situation, middle age is often characterized by avoidance of disharmony, comfort with one’s surroundings and circumstances, and a conservative view of the future. The same often may be said of public agencies and programs. State and federal environmental agencies do not possess the fire and sense of direction that marked their inception forty years ago. Public records laws are riddled with incremental exceptions. Legislators and other public officials are willing to sacrifice their firstborn (and their laws) for the prospect of jobs.
The current Oregon land use program is now forty years old. On May 29th, the signing of SB 100 will mark that anniversary. The fact that the program has survived is important. The programs of other states have not fared as well. A new administration in Florida effectively repealed that state’s role in land use planning two years ago. New Jersey’s program is tied up in knots. Washington’s program has done better; however, that program had fairly low expectations. Hawai’i and California build slowly on their existing programs, though not without controversy.
The Oregon program survived three attempts at repeal or evisceration in 1976, 1978, and 1982 and a host of more subtle efforts for legislative review of administrative rules (where they could be blocked or otherwise subject to the Salem sausage-making factory ). For a time, the electorate was under the spell of “just compensation for land use regulations” under Measure 37 in 2004, but when it became apparent that the result was billboards, shopping centers and subdivision on resource lands, the voters approved Measure 49 which severely limited claims already made and required future claims to prove that land use regulations resulted in loss of value – something often alleged but rarely, if ever, proven.
At this point, forty years on, the state’s land use program is not in danger of direct repeal, but that fact does not guarantee that the program is not in danger. With the passage of Measure 5, limitations on local property taxes and transfer of most school funding responsibilities to the state have resulted in less money being available for planning (or, for that matter, for state police, parks, or environmental protection), so that very little money is available to go to local governments for planning or providing public facilities and services to attract employment opportunities. Local governments have the same problem – while they don’t provide educational services, they must deal with the panoply of services for law enforcement, parks, housing, libraries – and planning – with a great deal less funds.
Funding isn’t the only problem though. The principal danger of having meaningful planning under state law is that every interest group pushes its pet project at the state legislature, which is not well known for its self-denial. So the interest of the moment becomes the flavor of the month in Salem, whether it’s vermiculture (worm-raising) on farmland, transmission towers over 200 feet in height, or casino siting standards. All of these have actually been the subject of legislation in Oregon.
But perhaps the most serious problem facing the Oregon planning program is the tendency both to take it for granted, while at the same time using it as the mechanism for special interests. The excitement and sense of purpose that marked the passage of SB 100 have given way to an instrumental approach to that program without regard to its origins in preservation of resource lands, compact urban areas and a participatory and integrated planning process. The analogy to middle age is not far-fetched. It is appropriate to have thoughtful discussions of that program so that those Oregonians not born or in the state in 1973 may consciously reaffirm or reframe that program.
In the day-to-day practice of law, we are often asked to sort out problems big and small with little opportunity to control who walks in our door. However, at Garvey Schubert Barer, the firm’s dedication to pro bono representation provides encouragement and support for its attorneys in giving a voice to those who cannot afford one. Ed Sullivan and I use our land use expertise on the Board of the Housing Land Advocates, an Oregon non-profit organization which has as its mission the support of land use policies that ensure land is available for affordable housing development in sustainable communities.
Recently, Housing Land Advocates Board Members, Ed Sullivan and Karin Power, published an article, entitled, “Coming Affordable Housing Challenges for Municipalities after the Great Recession.” The article summarizes the challenges for cost-burdened renters in the current economy. The Great Recession’s effect on affordable housing in America was undeniably pervasive, and the statistical figures of cost-burdened rental households appear bleak when compared against the ongoing losses in rental housing stock. With fewer renters than ever supported through HUD assistance programs, however, municipalities simply cannot afford to take a back seat to the ramifications of additional housing unit loss, particularly as it appears that the number of rental households is poised for continued growth over the current decade. As this article details, municipalities can and should implement the limited and cost-efficient tools they have at their disposal to mitigate the impact of an increasingly competitive rental market on their low-income residents.
No matter your perspective on particular projects, there can be no question that the ability to finance and fund projects will continue to be a challenge. One contracting method developed in part to address those kinds of concerns is referred to as P3, or public private partnership. The P3 method allows major projects to move forward by combining both public and private funds.
Just four months into 2013, several P3 bridge projects have reached significant milestones. In February of this year, the Ohio Department of Transportation selected three teams to provide P3 proposals for a new I-90 Innerbelt bridge – Ohio’s first use of the P3 method. Just last week, the Port Authority of New York and New Jersey authorized the award of a $1.5 billion contract to the NYNJ Link Partnership for the replacement of the Goethals Bridge.
However, not all the news is of projects moving forward. A proposed new bridge over the Knik Arm (the KAC or Knik Arm Crossing) in Anchorage, Alaska, hit a significant hurdle in the form of an audit prepared by the Alaska Joint Legislative Budget and Audit Committee. That audit suggests the project may have significant feasibility concerns – including “unreasonably optimistic” toll and revenue projections – projections that are a key component to a successful P3 project. Although KABATA, the Knik Arm Bridge and Toll Authority, disputes the audit, it is indicative of yet another challenge facing this potential project.
Similarly, the Columbia River Crossing – a new bridge for Interstate 5 connecting Portland, OR, to Vancouver, WA – has seen funding challenges so far this year. Oregon passed necessary funding for its portion of the costs to construct a new bridge over the Columbia River for Interstate 5 relatively quickly. Washington, however, was not so quick – and only last week came to a compromise that allows some of the funding to be issued, with much of it contingent on a USCG review. Final construction financing is still not approved.
Major infrastructure plays an important role; it comes with a significant price tag. While innovative methods have been developed to increase the financial feasibility of these projects, it is clear that additional education, study, and creativity is needed to continue moving toward development of successful projects that support the logistics of today’s economy.
Lupo v. Community Works Rhode Island Inc., et al., 2012 WL 6585 278 (RI), involved Plaintiff’s challenge to use and dimensional variances granted to Defendant Applicant. The challenge was by declaratory judgment but the Superior Court affirmed both actions and plaintiff appealed.
The Supreme Court determined, based on Rhode Island precedent, that there was no appeal from the Superior Court judgment in zoning matters. Rather, review was by writ of certiorari. While the challenge below was brought by declaratory judgment, the basis for the controversy was a reviewable Zoning Board decision. According to the court, the use of a declaratory judgment is not a means to bypass the statutory mechanism of the state to review superior court decisions in zoning matters. Rather, a discretionary certiorari review was the sole basis for such a challenge. Accordingly, the appeal was denied and dismissed.
This case shows the courts are particular about the means by which land use decisions may be reviewed. While the declaratory judgment offers a means by which actions, which do not have appeal or review mechanisms, may be tested, that form of action is not a substitute for existing appeal or review mechanisms.
Lupo v. Community Works Rhode Island Inc., et al., 2012 WL 6585 278 (RI).
In Cosner v. Umatilla County (2012), the Land Use Board of Appeals overturned a series of Umatilla County ordinances adopted in 2011 to prevent several wind energy developments. The main issues in the case involved the county’s compliance with Goal 5 and the constitutionality of 2-mile setbacks for wind turbines from certain uses and locations. LUBA found against the county on both assignments of error.
After the Cosner decision, the county adopted a new series of ordinances in 2012 that it believed would resolve the problems identified in Cosner. Thereafter, Jim Hatley (also a party in Cosner) appealed the 2012 ordinances. LUBA upheld the county’s new ordinances and Hatley appealed to the Oregon Court of Appeals.
On April 3, 2013, the Court reversed and remanded LUBA’s decision. Significantly, the Court held that Hatley did not waive his right to appeal the 2012 ordinances because he could have raised those issues in the original LUBA proceedings. The Court distinguished between quasi-judicial decision making, where a strong “raise-it-or-waive-it” standard applies, and legislative decision making, where waiver does not apply. In a quasi-judicial process the governing body is required to give notice of and apply a set of criteria within a fixed time-frame and to adopt a final decision. In contrast, once LUBA overturned the 2011 ordinances, the county was not bound to take any action, but opted on its own to adopt two new ordinances. Therefore, the public involvement process started anew.
On remand, LUBA will consider whether the county’s 2012 ordinances are preempted by state laws that encourage and govern renewable energy.
This decision is also likely to inform the legislative debate over House Bill 3362 that attempts to limit public participation in local legislative actions. This bill comes from Eastern Oregon and the ongoing battles between the City of Bend, Deschutes County, and Central Oregon Landwatch.
Stay tune to both the legislative debate and LUBA’s treatment of Hatley v. Umatilla County on remand.
US Supreme Court Affirms EPA’s Interpretation of the Clean Water Act; Justice Scalia Signals that the Tide for Agency Deference May be Turning
Oregon courts have a long-standing practice of giving deference to an agency’s interpretation of its own administrative rule if the interpretation is “plausible” and not “inconsistent with the wording of the rule itself, or with the rule’s context, or with any other source of law.” This type of broad deference is given not only to agencies in interpreting their own rules but also to local governments when applying their own land use plans and land use regulations. This approach seems to work well, especially in cases of local government interpretations, where the local government is an elected body and presumably can be voted out if their interpretations are viewed by the public to be inconsistent with adopted codes. Agencies, by contrast, are not elected but are typically run by governor-appointed commissions or boards. Deference to agency interpretations stems from a belief that the agency has knowledge of and will act to further the original intent of its own rules.
Similarly, the federal courts have historically treated federal agency interpretations of statutes and administrative rules with a great deal of deference. Again, under the same premise that so long as the interpretation is not inconsistent with the plain language of the rule, it is entitled to be affirmed. But a few weeks ago, in the case of Decker v. Northwest Environmental Defense Center, the Supreme Court indicated a change may be coming soon. Read the rest of this entry »
Garvey Schubert Barer’s Hospitality Group hosted events in Seattle and Portland March 11 and 12, to discuss the comeback of hotel and hospitality-related development. More than 140 attendees ranging from construction industry representatives to flag representatives and investment bankers participated in the discussions. One panel about Construction and Transactional Development highlighted the return of bricks and mortar to the hospitality conversation. The bullet point lessons are applicable to the land law blog followers – developers of all types and those who work with the construction industry, and I invite you to read on.
In both Portland and Seattle, there are grounds for optimism in the hospitality industry in 2013 given the plans for new rooms – 3,000 in Seattle and 1,000 in Portland. Also, speakers noted that there is unfulfilled demand for hotels like midsize hotel products in downtown Portland. In addition, creative construction ideas are afoot in the hospitality sector. While new builds may occur in Portland, areas like Seattle, San Francisco, and Los Angeles are making headway with adaptive re-use. For example, in Los Angeles, vacant office buildings are available and developers are finding these buildings can be converted into hotels in a cost effective manner. This kind of redevelopment in neighborhoods close to tourist amenities represents an exciting economic development opportunity in areas that no longer successfully serve office uses.
The Euclid Society met again on Thursday March 12, 2013, to discuss the case of David Hill Development v. the City of Forest Grove. As has been discussed before on this blog, the David Hill case resulted in a 6.5 million dollar jury verdict against the City of Forest Grove for a series of violations of the developer’s constitutional rights. The Euclid Society discussed the specifics of the case, how it happened and how to avoid such results in the first place.
The basic facts were undisputed – David Hill Development, LLC, bought several acres of farmland at the edge of the UGB and sought to develop a large subdivision. Although the property was flat farmland and generally easy to develop, it faced a few challenges. First, to the south was a phased development that had brought sewer most of the way to the property, but the final phase, which was not yet built, was where the gap would be bridged. In addition, the boundary between the two developments would be a road. In addition, a neighbor to the north, whose property was outside the UGB, was concerned that the sewer be built in such a way that his property could be served.
The City approved a subdivision for the property in September of 2005 and things quickly went downhill. The plaintiff argued that it lost a significant amount of money due to delays caused by the City and that the City treated plaintiff differently than other developers. Some of the plaintiff’s complaints included a requirement multiple sewer alignments, a stop work order that was later rescinded, requiring the sewer line to be built too deep (solely to serve the property to the north) and the requirement to build more of the road on the boundary line to the south. The City pointed to various reasons why each of those delays and treatment of plaintiff were reasonable but, ultimately, the jury, and later, the magistrate, agreed with plaintiff and found that the City had violated David Hill Development’s constitutional rights.
The discussion Thursday night began with a discussion of the timeline and some background information about the constructional provisions. The group then discussed the specific issues related to the sewer line and to the road and concluded with some discussions of the lessons to be learned. There was some disagreement about whether this was a unique case, based on the falling market and poor treatment of the plaintiff, but there were some universal lessons, including:
1. Act professionally.
2. Treat people fairly.
3. Follow the advice of your lawyer.
We would welcome any additional comments or discussion on the case and any lessons learned.
A recently decided case by the Oregon Land Use Board of Appeals (“LUBA”) says a lot about our land use system – perhaps too much. Richmond Neighbors for Responsible Growth v. City of Portland (February 20, 2013) started out as a challenge to project design and the parking requirements (or lack of such requirements) for a multi-family project at SE 37th and Division which was zoned for the multi-family use. Some neighbors formed Richmond Neighbors for Responsible Growth (RNRG) to object to the project. RNRG wanted input into the design of the site and structure to assure the “livability” and “character” of the area. Some neighbors also wanted fewer apartments. The City treated the application as one in which it had no discretion but to grant the application for 81 units. This development was one of several multi-family developments now proposed in Southeast Portland.
The City moved to dismiss RNRG’s case, contending that, under state law, LUBA could not review building permit applications based on clear and objective standards. LUBA, however, determined that not all the standards were clear and objective, and there was discretion that could be used to determine the height of this apartment building on a site with two different zoning designations. That discretion in determining the height led LUBA last November to conclude that it had jurisdiction to hear the case.
Now that their case could be heard, RNRG was faced with how to make that case. The final order doesn’t mention any challenges to the City’s lack of required onsite parking, as that standard involved no discretion. The one thing RNRG could challenge was the City’s interpretation of an obscure requirement that the “main entrance” for each tenant space be within five feet of the façade facing Division Street and, in fact, face that street. LUBA rejected the City’s interpretation of this requirement that it only applied to non-residential uses as contrary to the text of the regulation. Because the application would have to be revised substantially to meet the City’s code, LUBA reversed (rather than remanded) the City’s decision. Read the rest of this entry »