Great Britain Wrestles with Land Use Planning Reforms: Is Oregon Next?

Posted on May 11th, 2012 by

Land use planning laws in Great Britain may not be on your radar screen.  But some interesting things — besides the 2012 Summer Olympics – are happening over there that may just make their way to Oregon.  Last July, Britain’s Planning Minister proposed that Parliament adopt a new “National Planning Policy Framework” that would make significant changes to Britain’s land use planning laws.  Depending on your particular political viewpoint, the changes would either (a) remove burdensome planning rules that are stifling real estate development and hampering Britain’s economy, or (ii) remove important environmental protection rules that preserve Britain’s countryside and other natural and historic resources.

The proposed changes included a general policy statement that “[p]lanning must operate to encourage growth and not act as an impediment.”  The most controversial change proposed that Britain’s planning system be based on a presumption that development should be allowed, and a requirement that local authorities be flexible, not delay projects, and approve proposed developments where local plans do not specifically address whether the development should be permitted or not.  The language was strong: Read the rest of this entry »

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CATEGORIES:  International Land Use

Truck Stop Owner Entitled to Compensation for Closure of Highway Exit in South Dakota

Posted on May 10th, 2012 by

In an interesting case in South Dakota the owners of a truck stop were entitled to compensation for closure of a highway exit ramp when the State closed by condemnation the exit ramp to the property during a project. It is fundamental condemnation law that a government may regulate its streets for public safety and that a property owner is not entitled to compensation for closure of public street. This is referred to as the government’s police power. Read the rest of this entry »

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CATEGORIES:  Land Use in Oregon

Music and Democracy in Action

Posted on May 3rd, 2012 by

From time to time, in our municipal and land use practice, and in our private lives as voting citizens, we must remind ourselves that the decisions that affect our daily lives occur at our public meetings.  Last night, as Assistant City Attorney for the City of Oregon City, I attended the City Commission and was reminded how much we can accomplish by municipal participation and why Oregon’s practice of direct democracy at City and County Commissions across the state makes it such a wonderful place to live.  Not only did the Commission make important decisions to designate heritage trees, kick off historic preservation month, and fund important infrastructure projects – it brought music to the people!  Just after the flag salute but before the business meeting began, Ellen Whyte delivered an energetic rendition of “The Blues Walked Through My Door” to the delight for all in attendance and set the mood for an engaging meeting.

The City Commission hosts music performances before its regular meeting throughout the year to showcase the city’s local talent and deepen its commitment to inclusion of the arts in our civic experience.  Due to technical difficulties last night Ellen’s performance was not recorded, but check out these links to the earlier performances of the Tonesetters, the Lucky Shamrocks, and Rae Gordon. I know I will be looking forward to performances yet to come! 

And for all of you municipal employees out there, I strongly suggest taking a tip from Oregon City and inviting a performer to your next public meeting.

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CATEGORIES:  Land Use in Oregon

DLCD Issues Staff Report on Metro Urban Growth Boundary

Posted on May 1st, 2012 by

The latest round of urban growth boundary (UGB) expansion in the Portland Metropolitan area is likely to go back to Metro for further justification.  On April 19, 2012, the Department of Land Conservation and Development (DLCD) issued a staff report to Land Conservation and Development C ommission (LCDC) recommending partial approval, but remanding most of the important elements of Metro’s most recent attempt to expand its UGB. 

Metro, the area’s regional government, is responsible for adopting a comprehensive UGB for the various jurisdictions within the Portland area.  Its decisions on UGB expansions are typically complex and lengthy and this decision was no exception.  The current round began several years ago, with Metro initially adopting a decision that it would expand its boundary in December 2010.  Subsequently, LCDC postponed consideration of that decision and then consolidated it with Metro’s October 2011 decision on where, exactly, to expand the UGB. Read the rest of this entry »

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CATEGORIES:  Land Use in Oregon, Land Use Planning

Another Remand on Vested Rights Determination under Measure 49

Posted on April 27th, 2012 by

Measure 49 reopened the method to review vested rights under 34 year-old case law in Clackamas County v. Holmes, 265 Or. 193 (1978). But, the analysis is vexing because very few local governments and courts are getting the analysis right. However, with each new decision, the Court of Appeals and Oregon Supreme Court are attempting to clarify how local governments and trial courts should consider the application of the Holmes factors necessary to make a vested rights determination.

The Holmes factors are:

1) The ratio of prior expenditures to the total cost of development;

2) The good faith of the landowner in making the prior expenditures;

3) Whether the expenditures have any relationship to the complete project or could apply to various other uses of the land; and

4) The nature of the project, its location and ultimate cost.

Read the rest of this entry »

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CATEGORIES:  Measure 49, Vested Rights

Condemnation – It Isn’t So Much What is Taken, But What is Left

Posted on April 20th, 2012 by

From time to time governments need to take property for a public purpose. Both the federal and state constitutions allow this, provided the government pays “just compensation.” If the government can’t reach an agreement with the property owner, it can take the property under its eminent domain authority – condemnation – by filing a lawsuit naming the property owner (and any other party having an interest in the property to be taken). The issue in a condemnation lawsuit is: what is the amount of just compensation owed? Read the rest of this entry »

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CATEGORIES:  Condemnation, Takings

Constitutional Scrutiny Over One County’s Ban on Commercial Wind Farms

Posted on April 13th, 2012 by

In Zimmerman v. Wabaunsee County, Kansas, 293 Kan 332, 264 P3d 989 (Kan. 2011), the Kansas Supreme Court considered Plaintiff landowners appeal of the county’s decision to adopt zoning regulations that expressly prohibited the placement of commercial wind farms.  Each of the Plaintiffs had entered into written contracts for the development of commercial wind farms on their properties.  Plaintiffs raised two federal constitutional challenges to that ordinance, using the Takings and Commerce Clauses.

On review, the Kansas Supreme Court found that in order to prevail on a takings claim, a party seeking compensation must first establish that the property in question is one in which a vested interest exists.  A mere expectancy of future benefit does not constitute a vested right.  Read the rest of this entry »

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CATEGORIES:  Land Use Planning, Takings, Wind Energy

Urban Farming: Zoning for Growing and Distributing Food in Portland Neighborhoods

Posted on March 26th, 2012 by

In a continued effort to encourage all things local, the City of Portland is taking steps to impose order onto the booming business of local, urban food production by formally recognizing market and community gardens, farmers markets, and food co-ops within its zoning code. Portland is joining a handful of other cities – such as San Francisco, Seattle, Philadelphia and Kansas City, reducing zoning barriers and encouraging the growing and selling of food in urban spaces. Although these activities have been allowed on a temporary basis within existing open spaces and empty parking lots, the objective with these amendments is to make existing uses permanent, create additional opportunities for access to new sources of food while, at the same time, restricting and mitigating negative impacts. Read the rest of this entry »

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CATEGORIES:  Land Use in Oregon, Land Use Planning, Planning, Zoning

Bill Stuffing – Federal Government Extends Its Reach into Cell Tower Land Use Decision Making

Posted on March 15th, 2012 by

In February, President Obama signed into law HR 3630, also known as the “Middle Class Tax Relief and Job Creation Act of 2012,” which extended unemployment benefits and payroll tax deductions. Congress stuffed the bill with several additional provisions, including one that affects local government decisions regarding the siting of wireless facilities.

The legislation expressly requires that a local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station, so long as the modification does not substantially change the physical dimension of the tower or base station. This approval must be granted regardless of provisions in the Telecommunications Act of 1996 (Section 704) or any other provision of law. An “eligible facilities request” is any modification request that involves the collocation of new transmission equipment; removal of transmission equipment; or replacement of transmission equipment. Read the rest of this entry »

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CATEGORIES:  Federal Land Use

The State’s Bundle of Sticks Stays in the State’s Pile According to the Washington Supreme Court

Posted on March 14th, 2012 by

As long as a governmental entity has an easement or fee in land, a neighboring landowner will not be able to claim ownership of that land through adverse possession. This is a well known principle in the law, however until earlier this month Washington courts supported a different conclusion. But in the recent Washington State Supreme Court decision of Kiely v. Graves, __ P.3d __ (March 2012, No. 84828-9), the Court brought Washington into the national mainstream protecting public rights from private prescriptive use. Read the rest of this entry »

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CATEGORIES:  Washington Land Use

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