Happy Holidays from the GSB Land Law Team. We look forward to working with you in 2014!
Carrie, Ed, Bill, Jennifer, John, Joe, Rob, Paul, Cynthia, and Julia
Happy Holidays from the GSB Land Law Team. We look forward to working with you in 2014!
Carrie, Ed, Bill, Jennifer, John, Joe, Rob, Paul, Cynthia, and Julia
Are you coming to Portland for the Legal Issues Workshop or just looking for an opportunity to network with planners from across the state? Plan now to attend a happy hour networking event sponsored by the membership committee of the Oregon Chapter of the American Planning Association and the Euclid Society (Garvey Schubert Barer). Bring a colleague and come on down to Quartet in the South Waterfront district of Portland the first Thursday in December!
We hope to see you there!
When: Thursday, December 5
Time: 5:00 to 7:00 pm
Where: Quartet, 1910 SW River Drive, Portland, OR 97201 (South Waterfront)
Sponsored in Part By: OAPA and Euclid Society (Garvey Schubert Barer)
Click here to register for the Holiday Happy Hour! Space is limited so please register in advance.
The 2013 Oregon Legislature had before it a proposal to apply “raise it or waive it” to legislative matters, plan amendments, or land use ordinance revisions. The legislature rejected this proposal but included a “note” in the budget for the Land Conservation and Development Commission (LCDC) to consider policy or legislation to deal with the issue. Before your eyes glaze over dear reader, let us define these terms and explain why this issue is important.
“Raise it or waive it” is a requirement that applies to “quasi-judicial” land use hearings – those involving the application of policy to one or a few parcels of land, such as a zone change, conditional use permit or variance. Quasi-judicial decision-making is where the applicant comes with a particular development proposal and the local government makes a decision, “yea” or “nay,” based on the adopted criteria. Local governments provide mailed and published notice of the proposal: describing the property, identifying the applicable criteria, and detailed hearing rules for a decision that must be issued within 120 or 150 days. That tradeoff promotes speed and efficiency in the land use process, if a party fails to raise an objection locally, she may not raise it for the first time on appeal.
In contrast, legislative amendments often affect large areas through changes to planning designations or changes to the text of those documents altering how various plan policies or regulations apply. They often do not focus upon specific properties; but rather are policy matters that apply to the entire local government or to large parts of it. The process of adoption is much more fluid. If notice is provided, as in the case of Measure 56 notice containing boilerplate text that a proposal could affect permissible uses of your property, it is done in the most general terms and most often comes with tax bills. Finally, that notice is often sent months or even years before the amendments are adopted and then, the proposal may look vastly different from what was originally proposed. Participants in a legislative process must be fastidious and dedicated to track an often-changing scope of proceedings and a large record where consensus amongst the staff or the decision-makers is not always obvious. Given that this is often a true sausage-making experience, state law does not require that participants raise all of their issues before the local government. Rather, by merely making an appearance, they are free to raise new issues for the first time at LUBA.
Some local government planners working on the front line, putting their soul into drafting and shepherding a legislative proposal through the approval channels, favor imposing raise or waive it onto legislative decision-making. From their perspective, cunning land use lawyers “wait in the weeds,” hold back their objections in order to kill a proposal on a legal front when they lack the necessary votes on the political front. Whether this is a “fair” legal strategy or not, it is true that a challenge to LUBA pursued by a single or small interested group can significantly delay (or derail) a legislative proposal completely frustrating the significant taxpayer funds and efforts expended in the effort and the inertia keeping these significant planning efforts on track.
Applying “raise it or waive it” to these policy endeavors is problematical for a number of reasons. First, there is no notice setting forth criteria and cautioning participants about the consequences of failure to raise issues and no limit on the time in which the decision must be made. Although the statutes could be amended to provide for more detailed notice or decision-making time limits, the bigger problem is the nature of the decision itself. Legislative decision-making is not a question of “to be or not to be.” It is a question about where and how to be. Unlike the situation for quasi-judicial hearings, the universe of criteria is so unlimited that providing a list of potentially applicable criteria would become a meaningless exercise. Only those with the time to participate from the stakeholder advisory meetings through adoption by the council or commission, or the fiscal resources to hire attorneys to do the same would be able to track the local proposals over an unlimited period to identify potential issues. Speaking as some of those attorneys accused of “laying in the weeds,” it is more often the case that we are retained at the end of the process when the extent of the impacts come into sharp focus but identifying all of the legal issues, sometimes when the final findings are available a week before adoption is difficult, even though it may be in our client’s best interest to do so.
Why is this important? Oregon has a long tradition of citizen involvement. The statewide planning goals were the result of intensive citizen involvement. Oregon allows to anyone who participates in a hearing to appeal a case to LUBA act as his or her own lawyer. If an industrial landowner fails to find out about hearings to enact new environmental regulations or if neighbors don’t find out about code amendments to allow inappropriate uses in residential zones, these folks may be foreclosed from challenging those regulations if they cannot contest them. Whether you liked the Portland parking requirements for multifamily housing near certain transit facilities, the fact remains that these and other regulations fly “under the radar” at present and could be immune from review if the “raise it or waive it” rule applies to legislative decision-making.
This next year LCDC is likely to make recommendations to the legislature on the application of raise it or waive it to policy matters. Whether citizen participation remains more important than the efficiency or cost-effectiveness of the Oregon planning program – that is the question.
Although not identified within LUBA’s statutorily-prescribed scope of review, all decisions approving proposed development against particular criteria must include adequate findings. As established in cases such as Fasano v. Board of County Commissioners this requirement includes (1) identification of the relevant approval standards, (2) identification of the facts relied upon, and (3) an explanation of how the facts led to the decision. Such obligations may appear easy enough on their face but have worked to snag many decisions that otherwise would have likely been affirmed. The effect of this extra layer of review, followed by a remand not only results in delayed development, but increases the cost to local governments defending the decision and, it must be assumed, additional development costs then passed on by developers to homeowners and businesses. Two recent LUBA opinions illustrate the problem.
In L’Heurex v. City of Portland, a neighbor challenged an adjustment committee approval of a height adjustment to allow construction of a dwelling that will be 30-feet tall instead of the required 23-footheight. The findings responding to the five adjustment criteria were jumbled together, making it difficult for LUBA to determine which findings responded to which criteria. One of the adjustment criteria asks whether granting an adjustment will “equally or better meet the purpose of the regulation to be modified.” Here, the purpose of the height limitation is to “promote a reasonable building scale and relationship of one residence to another.” The findings failed to define the term “scale” or “building scale;” a failure in identifying and interpreting the applicable standard, step one in the process outlined above. This left LUBA to interpret the purpose on its own, concluding that “scale” means the “size, bulk or mass of a building.”
Moving to what the City did find, the decision explains that the “additional deep front yard setbacks places the home within a reasonable relationship to other residences” and as a result, when viewed by a pedestrian, the new home would be generally the same height as the adjacent homes. The findings go on to note that the house will “not significantly impinge on views, light and open air among all houses.” LUBA found that the shared dwelling setbacks, the views, light and open air had nothing to do with the purpose served by the regulations which is to reduce the scale or mass of a building. LUBA went on to clarify that the reasonable building scale language is to be evaluated against neighboring residential homes, rather than for pedestrians when viewed from the street.
Finally, there was no discussion of whether the adjacent homes satisfied the existing height limitations as setting the baseline for the appropriate height. In a footnote, LUBA speculated that they do not. LUBA went on to opine that “it is hard for us to see how the city could ever grant a height adjustment to allow a house that is seven feet taller than the 23-foot standard, unless there are unusual on-site or neighborhood circumstances.” Again, giving LUBA an opening to prognosticate about the application of a relatively frequently used adjustment criteria should make future applicants’ (as well as the city) nervous because such warnings often serve as homing signals encouraging likely opponents. This is just another unanticipated consequence of failing to take time and care with findings.
One more interesting tidbit about this case, the applicant developer did not participate in the LUBA appeal defending its approval. Rather, the city attorney’s office expended that effort. Certainly the city could have chosen not to participate but it did in this case. We can only assume that those legal costs will be covered by some future increase in development application fees. In any event, the matter was remanded for the City to adopt adequate findings explaining the decision, thereby delaying development which may otherwise have been acceptable, considering that this was a single infill home. In contrast, consider another recent case, Shamrock Homes LLC v. City of Springfield, where an amendment affecting a 267-acre area was appealed.
In Shamrock Homes, the City of Springfield adopted a series of ordinances amending a refinement plan that replaced the existing zoning designations with new mixed-use plan designations and zones intended to revitalize the Willamette River waterfront. Petitioner, who owned a manufactured dwelling park on land that was previously zoned low density residential and was rezoned to Employment Mixed-Use, which does not allow manufactured dwelling parks, assigned error under a number of Statewide Planning Goals. With regard to challenges regarding Goal 15, the Willamette River Greenway goal, LUBA found that identifying a 75-foot setback from the Willamette River may be consistent with other laws, but that such a finding fails to explain how the setback is established to “protect, maintain, preserve and enhance” the Willamette River as it is identified for protection in the city’s adopted inventories. For this as well as many other reasons related to findings, LUBA remanded the decision extending what was a four-year planning effort to at least another year of delay.
The thing about adequate findings is that, although time consuming and often mind-numbing to draft, they are the low hanging fruit of errors in land use decision making that would be easy to correct. The additional delay and cost associated with LUBA remands based on inadequate findings serves as fodder for Oregon land use system opponents who work to paint the process as too cumbersome, complicated, time-consuming, and anti-development. The burden ultimately is on land use planners, local government attorneys, and decision-makers to demand better from their staff to take the time to avoid making these elementary errors.
by Edward J. Sullivan and Carrie A. Richter
In a 5 to 4 decision last month, the United States Supreme Court ruled that a local government must make “rough proportionality” findings whether it approves or denies a development in those cases in which conditions of approval (including those involving payment of money) are discussed. In that case, Koontz v. St. Johns River Water Management District, the Supreme Court dealt with a development permit denial because the applicant, Roy Koontz Sr., refused to either dedicate additional property or pay to improve a wetland elsewhere to offset the loss of wetlands resulting from this development.
Known as the “Nollan/Dolan limitations on unconstitutional conditions,” a local government may not condition the approval of a land use permit on the owner’s relinquishment of a portion of his property unless there is a nexus (connection) and rough proportionality between the government’s demand and the effects of the proposed land use. Justice Alito, writing for the majority, found that these limitations apply whether the local government approves or denies the permit. In other words, denials that state potential conditions concerning what would be necessary to gain approval must be framed as roughly proportional under the Takings Clause of the Fifth Amendment.
In addressing application of the doctrine on obligations to pay money, the majority distinguished previous holdings such as Eastern Enterprises v. Apfel, where a former mining company was required to pay for the medical benefits of retired miners, by finding the Fifth Amendment applied if there were a direct link between the government’s demand and a specific piece of real property. According to the majority, allowing a pay-in-lieu option to a real property exaction cannot be a surrogate for avoiding rough proportionality. How far the monetary exaction limitation reaches is difficult to say. The majority says that it “does not affect the ability of governments to impose property taxes, user fees and similar laws…that may impose financial burdens on property owners” but goes on to state that this decision does not distinguish between “taxes from takings.” Although systems development charges may fall within the ambit of a “user fee” exception, they are the result of a particular demand on property. Thus finding the limits of this case is likely something that only lawyers will love.
Writing for the dissent, Justice Kagan, agreed with the application of Nollan/Dolan to permit conditions, even if they are not accepted and the permit is then denied. Kagan cautioned that applying this test to a demand to pay money “bristles with conceptual difficulties. And practical ones too: How to separate order to pay money from…well, orders to pay money, so that the locality knows what is can (and cannot) do.” According to the dissent, this lack of direction “casts a cloud” on local government action. “If every suggestion could become the subject of a lawsuit under Nollan/Dolan, the lawyer can give one recommendation: Deny the permits, without giving Koontz any advice – even if he asks for guidance.”
Some, like Professor Echeverria, in writing for the New York Times (read article here), agreed with the dissent, claiming that this decision will cast such a pall that it will discourage discussions between developers and governments regarding appropriate permit conditions and will deprive the public of needed community benefits that come from the imposition of development fees including wetland mitigation efforts, road and utility upgrades, or park improvements. Although the situation is likely not that dire, California has required rough proportionality findings for conditions that require the payment of money for years and the same was true in Oregon when the Oregon Supreme Court noted the former limit on the Takings Clause to real property in West Linn Corporate Park v. City of West Linn. Certainly Oregon’s tradition of requiring written findings in the case of both land use permit approvals and denials will provide one vehicle to help achieve this result.
What is more likely true is that this decision is going to make the whole process of obtaining a development permit less certain. Local government planners will be wary of speculating in advance about calculating the improvement or fees that will apply through pre-application conferences and the like until the applicant has incurred the costs associated with conducting detailed transportation or infrastructure demand plans necessary to evaluate impacts. Developers should expect that providing adequate findings will take longer. In a time when governments seem to be falling over themselves to simplify the system and expedite development, the property rights advocates might conclude that this decision is little more than a pyrrhic victory.
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.
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. (more…)
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. (more…)
In 2010, the 9th Circuit (the federal appellate court that includes most of the Western United States) ruled in a case involving the City of West Linn that conditions to development approval requiring off-site improvements, such as the installation of a pipeline or road improvement, were not subject to the same “rough proportionality” obligations imposed for when the government requires acquisition of land. West Linn Corporate Park, LLC v. City of West Linn. The Oregon Supreme Court responding to a series of questions asked by the 9th Circuit as part of its deliberations concluded that where a regulation requires that the owner pay a sum of money, “the regulation is not tantamount to acquisition.” The US Supreme Court declined further review and the West Linn case settled this matter until now.
This past month, however, the Supreme Court heard oral argument in Koontz v. St. Johns River Management District, requiring that court to grapple with the right of government to impose off-site conditions in return for permit approval. Coy Koontz Sr. wanted to develop 3.7 acres of wetlands and protected uplands located in a habitat protection zone controlled by the local St. Johns River Water Management District in Florida. Koontz applied for a permit offering to place his remaining 11 acres of his property into a conservation easement. The District determined that additional mitigation to offset the loss of wetlands was required in addition to dedicating the 11 acres. The District asserted Koontz would likely be required to pay for improvements for these off-site wetlands owned by the District but located elsewhere and said it was open to other alternatives. Koontz refused the District’s specific proposal and his permit was denied.
Koontz filed suit in Florida state court arguing that there was no “essential nexus” or “rough proportionality” between the government request for off-site improvements and the impacts from the proposed development. The state trial court ruled in favor of Koontz finding a taking but the Florida Supreme Court reversed finding that there was no “dedication of real property” and therefore, no taking occurred. In October, 2012, the US Supreme Court accepted the case.
As with the plaintiff in the West Linn case, Koontz argued that the off-site mitigation measures suggested by the district in order to allow the development on his property to go forward were not “roughly proportional” to the impacts from this development and further, these tests apply to conditions suggested by the government in a permit negotiation process but never actually imposed. The District and a number of amici argued that Koontz’s claim was inconsistent with the text and history of the Takings Clause, as well as the Court’s takings jurisprudence, and that no taking could have occurred because no property was actually taken. The brief filed by the amicus American Planning Association argued that “a ruling for Koontz would effectively constitutionalize all run-of-the- mill land use negotiations and risk grinding both the land use process and the judicial system itself to a halt.” (more…)
In November, we noted a pending US Supreme Court case, Arkansas Game and Fish Comm. v. United States, which involved continual but temporary flooding of the Arkansas Dave Donaldson Black River Wildlife Management Area, which allegedly reduced the timber harvest by 16 million board feet and disrupted the recreational use of that land. The trial court had found a taking but the Federal Circuit reversed, finding the temporary flooding was not a permanent or inevitably recurring situation and thus not a taking.
Since 1948, the US Corps of Engineers, owned and operated the Clearwater Dam about 115 miles upstream from the Management Area. The Corps uses a Water Control Manual to determine water release rates on a seasonal basis with planned deviations for agricultural, recreational and other purposes. In 1993, the Corps released the water more slowly in order to enable farmers to have a longer harvest season, but then released more water later, during the tree-growing season from April through October, resulting in more flooding over those months. From 1994 to 2000 similar deviations were authorized over Plaintiff’s objections. The Corps also considered, but abandoned, a permanent revision to the manual. (more…)