USEPA’s “Pollution Diet” For A Major National Waterway: Land Use Regulation and the Clean Water Act Intersect

iStock_000010382621_LargeThe Federal Clean Water Act became law in 1972 with the goal of eliminating pollution of the nation’s rivers, lakes and coastal waters by 1985. Despite the intervening decades, there is widespread recognition that the goal line is still off in the distance. Although significant progress has been made in reducing pollution from “point source” discharges such as industrial facilities and municipal sewage treatment plants, it is generally recognized that considerably more needs to be done, particularly with respect to “non-point source” pollution from agriculture (fertilizers and livestock management are examples), urban stormwater runoff, and residential sources (e.g., lawn fertilizers, certain soaps and detergents, etc.). Continue Reading

United States Supreme Court Allows States to Control Speech in Use of State Specialty License Plates

iStock_000008821292_LargeWalker, Chairman, Texas Department of Motor Vehicles Board v. Texas Division, Sons of Confederate Veterans, United States Supreme Court Case No. 14-144 (June 18, 2015), was a First Amendment case involving the use of “specialty license plates” in Texas. Under a statutory scheme administered by Defendant Texas Department of Motor Vehicles Board, (“TDMV”) the State may approve or deny specialty license plate designs proposed by nonprofit organizations. The design may include a logo, a graphic, or both. TDMV may deny a design if it is “offensive to any member of the public” or by rule. Plaintiff Sons of Confederate Veterans (“SCV”), a nonprofit organization, sought approval of a design that included its name and a Confederate battle flag. Continue Reading

United States Supreme Court Applies Taking Clause to New Deal Agricultural Products Law

iStock_000070594267_LargeHorne v. Department of Agriculture, No. 14-275 (June 22, 2015) was an “as applied” takings challenge to an almost 80-year old law that was enacted by Congress as part of President Franklin Roosevelt’s New Deal. The Agricultural Marketing Agreement Act of 1937 established a marketing system for certain products. Under the Act, Defendant U.S. Department of Agriculture required raisin growers to set aside a percentage of their crop, as determined by the Raisin Administrative Committee (RAC), whose members consist of growers and others in the raisin business and are appointed by the Secretary of Agriculture. The required “set aside” has the effect of raising raisin prices and allowing the RAC to market and otherwise dispose of the set aside raisins. There are, at times, sufficient receipts from the set aside raisins to exceed their market value; however, there are also at other times insufficient revenues to equal their market value, including the year at issue. Continue Reading

Have You Invited All the Right Parties to Your Easement Lawsuit?

Newly built housing area in BavariaLitigation over easement rights is a common occurrence in Oregon. In their most typical form, these lawsuits are filed as declaratory judgment actions under Oregon’s Uniform Declaratory Judgment Act, ORS 28.010 et seq. As easement rights can span a number of properties and touch upon the property interests of many parties, the attorney filing the lawsuit is faced with the question of who must be named as defendants. The title holders to the affected properties are obviously necessary parties, but what about holders of lesser property rights, such as easements? Continue Reading

California Supreme Court Upholds City Inclusionary Zoning Requirements Against Constitutional Attacks

iStock_000009179828_LargeIn a long-awaited decision, the California Supreme Court upheld an “inclusionary zoning” ordinance by the City of San Jose that provided for construction of low and moderate-income housing by requiring a developer of 20 or more units to set aside 15% of the units for the private purchase by those with low- or moderate-incomes. The California legislature had authorized, but did not require, any particular method to provide such housing.

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HUD Moves Forward While Oregon Falls Behind: HUD’s Affirmatively Further Fair Housing Rule

iStock_000040764222_LargeThe Department of Housing and Urban Development (HUD) wasted no time in finalizing the new affirmatively furthering fair housing rules the day after the U.S. Supreme Court upheld disparate impact claims under the Fair Housing Act in Texas Department of Housing Affairs v. Inclusive Communities Project, Inc. (see last week’s post for a summary of that case). Disparate impact results from governmental policies that may not have been intended to create segregation, but do in fact result in segregation. The Supreme Court’s ruling upholds the Fair Housing Act’s prohibition on discrimination caused by policies or practices that have an unjustified disparate impact because of race, color, religion, sex, familial status, national origin, or disability.

The new rule requires certain public entities (“entitlement jurisdictions” that receive federal funding for housing) that have, under previous HUD rules, been required to prepare an Analysis of Impediments to Fair Housing (AI) to prepare an Assessment of Fair Housing Report (AFH). The AFH meets standardized reporting requirements, and is drafted to assist program participants in reducing disparities in housing choice, and to provide access to housing opportunities, particularly for those with protected status.  The overall goal of the new reporting requirement is to expand economic opportunity and enhance quality of life.

These rules are a game changer for land use planning. HUD is proactively getting involved in the business of zoning for fair housing, not just financing units. HUD recognizes that fair housing issues may arise from factors such as zoning and land use, including the proposed location, design, and construction of housing; public services that may be offered in connection with housing (e.g., water, sanitation); and related issues. According to HUD, the AFH approach focuses primarily on assisting program participants in being better informed, and better able to set goals and priorities.  In particular HUD wants to ensure that the following conditions will be taken into consideration when making funding decisions in a particular jurisdiction – patterns of integration and segregation; racially or ethnically concentrated areas of poverty; disproportionate housing needs; and housing-related barriers in access to education, employment, and transportation, among others.

While local jurisdictions will remain in local control of land use decisions and adoption of zoning regulations under the new rules, entitlement jurisdictions are called on to provide a specific analysis of land use programs that may inhibit affirmatively further fair housing. In addition to HUD’s final rule, HUD’s Assessment Tool, adopted in 2014, and guidance to be issued in the near future, will assist recipients of federal funding to use that funding and, if necessary, adjust their land use and zoning laws in accordance with their existing legal obligation to affirmatively further fair housing.

Zoning and land use laws that are barriers to fair housing choice and access to opportunity can be quite varied and the determination of whether a barrier exists often depends on the factual circumstances in specific cases.  One example is zoning and land use laws that were intended to limit affordable housing in certain areas in order to restrict access by low-income minorities or persons with disabilities. The City of Black Jack took egregious zoning actions in the 1970s that prevented construction of low-income multifamily housing that had a racially discriminating effect and was found to violate the Fair Housing Act.  U.S. v. City of Black Jack, 508 F.2d 1179 (1974).  An example of a positive zoning action that would further fair housing would be the removal of such an ordinance. HUD intends to include additional examples in its guidance for its affirmatively furthering fair housing regulations.

Closer to home, Oregon’s 2015 legislature had a clear path to a remove a barrier to affirmatively furthering fair housing, but the Oregon Senate would not even take a public vote on House Bill 2564 to remove the constitutional ban on mandatory inclusionary zoning. Instead, the bill died in committee after having passed the House. Inclusionary zoning is a tool that requires new developments of housing to construct a particular percentage of new units for qualifying low-income home seekers. While the Oregon Senate failed to move forward, the State’s Draft Fair Housing Report 2016-2020 contains a finding that the state’s ban on inclusionary zoning “limits housing choice for persons of color and low income persons.” The AI included in the report states:

Disallowing inclusionary zoning as part of a community’s affordable housing toolkit limits the provision of affordable housing in general. In addition, limits on the use of inclusionary zoning may disproportionately affect members of protected classes to the extent that they have a greater need for affordable housing. This situation is called discriminatory effect or disparate impact.

With the fuel from the Supreme Court’s decision, as well as the new HUD regulations, Oregon’s leaders would be wise to avoid potential challenges and pick off low-hanging fruit like overturning the ban on inclusionary zoning.  Such action is an easy first step to remove barriers for protected classes and avoid disparate impact challenges.

United States Supreme Court Finds Segregation Violates the Fair Housing Act

iStock_000015829761_LargeAlthough not garnering the rallies and applause given to the U.S. Supreme Court’s recent decisions dealing with the Affordable Care Act or same-sex marriage, the Court’s ruling considering the scope of the Fair Housing Act is likely to have just as much impact in how neighborhoods develop and in the choices protected classes of people – such as those protected by race, disability and familial status – have about where to live.

In Texas Department of Housing Affairs v. Inclusive Communities, Inc., the Inclusive Communities Project (ICP), a non-profit organization that seeks to promote racial integration in Dallas, sued a state agency charged with allocating HUD-issued low income housing tax credits to developers who build low-income housing projects. The ICP accused the Texas agency of disproportionately allocating the tax credits to properties in poor areas in violation of the Fair Housing Act of 1968 that makes it illegal to refuse to sell, rent “or otherwise make unavailable” housing to anyone because of race, sex or other protected categories. Between 1995 and 2009, the state did not award tax credits for any family units in predominantly white census tracts, and instead awarded tax credits to locations “marked by the same ghetto conditions that the FHA was passed to remedy,” ICP’s pleading states. ICP did not allege intentional discrimination, but rather whether the fact that issuance of tax credits within solely high-poverty areas that results in a disparate impact on minorities is sufficient to show a violation of the FHA.

Justice Kennedy, writing for the majority, noted that while de jure racial segregation in housing has been unlawful for over a century, de facto segregation remains. Congress passed the Civil Rights Act of 1968 and amendments to the Fair Housing Act in 1988 (the Fair Housing Amendments Act or FHAA) as well as cases applying Title VII of the Civil Rights Act of 1964, which banned many acts of housing discrimination, as antidiscrimination laws that focus not just on the “mind-set of the actors” but also on the “consequences of the actions.” By its terms, the FHA and its amendments were enacted to provide for fair housing and to prohibit unfair discriminatory housing practices. The Court added: “These unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification. Suits targeting such practices reside at the heartland of disparate-impact liability.”

The Court emphasized at some length that the disparate impact test was not formulaic and must be applied flexibly and specifically expressed concern over the use of racial quotas. The test must require a “causal link” in a case such as the one before it, between the policy and discrimination so as to remove “artificial, arbitrary and unnecessary barriers” to housing. The Court concluded:

Much progress remains to be made in our Nation’s continuing struggle against racial isolation. In striving to achieve our “historic commitment to creating an integrated society,” we must remain wary of policies that reduce homeowners to nothing more than their race.

Justice Alito writing for the dissent, joined by Chief Justice Roberts, Justice Thomas and Justice Scalia, focused on the statutory language “because of race” and concluded that only intent or motive mattered. As a result, Congress intended to cover disparate treatment — not claims of disparate impact. Quoting from another case, Alito pointed out: “The Court acknowledges the risk that disparate impact may be used to ‘perpetuate race-based considerations rather than move beyond them.’”

This case highlights the equity associated with giving all individuals choices in selecting appropriate housing rather than focusing solely on their quantity. But calling HUD’s Section 8 program “Housing Choice” is entirely undermined if families really have no choice about where they are going to live. As importantly, it illustrates the link between affordable housing and land use planning. The land use choices that planners and housing advocates make that results in segregation can violate the Fair Housing Act even though it may be entirely inadvertent.

The State Supreme Court Confirms Washington is a Neighborly State

Mature couple painting fence

Adverse possession and prescriptive easements are scary concepts to landowners. Valuable property rights can be lost to neighbors and strangers, seemingly rewarding longtime bad behavior. The Washington Supreme Court has recently struck a chord to promote harmony in our state, and make prescriptive easements tougher to establish in the case of Gamboa v. Clark, 183 Wn.2nd 38, 348 P.3d 1214 (2015).

The Gamboas and Clarks owned adjoining parcels of enclosed agricultural land which had originally been part of one larger parcel separated by a gravel road, largely crossing the Clarks’ property. The road was used by the Gamboas to access their home and by the Clarks for farming grapes on their parcel. The road had been used by both parties and their predecessors for these purposes for decades. Each was aware of the other’s use of the road, and neither party gave the other permission, objected or interfered with the other’s use. After an unrelated dispute arose between the parties in 2008, the Gamboas brought an action seeking a prescriptive easement to use the gravel road to the extent on the Clarks’ property.

The Court found that the elements of a prescriptive easement were all present in this case, with the possible exception of “adversity”. The Gamboas’ use of the road was “open, notorious, continuous, hostile and uninterrupted over the prescriptive period of ten years” and the Clarks had “knowledge of such use at the time when [they] would be able at law to assert and enforce his or her rights.” Incidentally, it’s not clear to me how the use can be found to be “hostile” without also being “adverse”.

In certain circumstances, Washington courts have found that a use of someone’s property will be presumed to be with the owner’s permission and therefore not “adverse”. For example, in the case of unenclosed lands, the regular crossing of another’s property is presumed to with permission.  Roediger v. Cullen, 26 Wn.2d 690. A presumption of permissive use also applies to enclosed or developed land cases when it is “reasonable to infer that the use was permitted by neighborly sufferance or acquiescence.” The third situation recognized was when the owner created the road and the claimant’s use did not interfere with the owner’s use.  Cuillier v. Coffin, 57 Wn.2d 624, 627 (1961).

In this case, the trial court ruled that because the land was enclosed, there was no presumption of permission from the Clarks, and in effect, accepted a presumption of adverse use. In this close case, that shift from a presumption of permissive use, to placing on the Clarks the burden of establishing permissive use, led to the ruling that the Gamboas were entitled to a prescriptive easement to use the gravel road over the Clarks’ property.

Division III of the Court of Appeals disagreed, and found that the trial court erred in not recognizing that the Clarks should enjoy a presumption of permissive use, placing on the Gamboas the burden of rebutting that presumption to show their use was “adverse”.  Gamboa v. Clark, 180 Wn. App. 256, 321 P.3d 1236 (2014). This can be done by presenting evidence that the claimant’s use was “adverse and hostile to the rights of the owner” such as by showing he “interfered with the owner’s use of the land in some manner” or that the owner’s acts or statements acknowledged the claimant’s right to an easement.

Interestingly, Division I of the Washington Court of Appeals (Drake v. Smersh, 122 Wn. App. 147, 153-54, 89 P.3d 726 (2004)) as well the Oregon Court of Appeals (Wels v. Hippe, 269 Or. App 785, 787 (2015)) have recently taken positions more closely aligned with the trial court approach to the presumption of adversity. However, the Washington’s Supreme Court held that even in cases of enclosed land, “an initial presumption of permissive use applies to enclosed or developed land cases in which there is a reasonable inference of neighborly sufferance or acquiescence.”   Id. at 1220. “Showing a reasonable inference of neighborly sufferance or acquiescence is a fairly low bar.”  Id. at 1221. In this case the fact that both parties knew the other used the road and didn’t object, and the use did not interfere with the owner’s use of its land, was enough to create this inference.  Bingo. No prescriptive easement.

I like this decision, and it fits the traditional Scandinavian silent but friendly culture of the Northwest. Why put the burden on the neighbor who allows a neighbor to use his or her road to be nasty to make sure he or she doesn’t lose property rights?  Why encourage more fence building when a policy which assumes that neighbors will be generous with each other creates a more pleasant atmosphere?  Here’s to a neighborly Washington!

United States Supreme Court Strikes Down Local Noncommercial Sign Regulations

Sign on grassReed v. Town of Gilbert, No 13­502, June 18, 2015, involved one of 25 exemptions to Respondent’s general requirement that a sign permit be secured to display a sign. Those exemptions are based on the content of the sign. The category at issue was a “temporary directional sign relating to a qualified event,” which may be sponsored by a religious, charitable or other nonprofit organization. Signs in this category are limited in size (6 square feet), the number which may be placed on property (4), and time (12 hours before and one hour after the event). Those signs are treated less favorably than ideological signs ( which may be 20 square feet, allowed in any zone and unlimited in time) and political signs (which may be 16 to 32 square feet, depending on the status of the property, and allowed 60 days before and 15 days following an election).

Reed, a church pastor, wished to advertise the times and location of his congregation’s service, which were not always in the same place, since there was no fixed church site. The signs did not always contain a date and were in place outside the time limits of the regulations. After accommodation failed, Reed filed a First Amendment claim in federal court. After two rounds in the trial court and Ninth Circuit, relief was denied as the categories were deemed content neutral so that no content based regulation occurred. The Supreme Court granted certiorari.

Justice Thomas, writing for the court, said that content based regulations of expression were presumptively unconstitutional and would only be upheld if shown to serve a compelling public interest and narrowly tailored to achieve the same. He added that “content ­based” dealt with either the topic discussed or idea the message expressed. Even content neutral regulations would be subject to strict scrutiny if they cannot be justified without reference to the content of the speech or shown to be adopted due to disagreement with the message conveyed.

The Court found the regulations content based as they depended on the message i.e. a “qualifying event,” an ideological matter, an election) which triggered different regulations for each category, thus triggering the strict scrutiny analysis. The Court found the justifications accepted by the Ninth Circuit “unpersuasive.”

One justification was that the regulations were not motivated by disagreement with the message; However the Court responded that motivation is irrelevant if the regulations were not content neutral, even if the regulation were facially neutral. Such a regulation may be content ­based even if it does not discriminate based on subject matter or viewpoints. In this case the regulations single out specific subject matter (information on “qualified events), even if it takes no position on those events, and allows signs relating to that event to be treated differently than ideological or political signs ­­ a paradigmatic example of content ­based discrimination.” Another justo action was that the regulations were content ­neutral as to speaker and event. The Court said the signs were based on their content, rather than the identity of the speaker. Had the church or its pastor expressed an ideological message or supported a candidate, the regulations would have been different. Thus they are content based. There was no adequate justification for these regulations under a strict scrutiny analysis.

Respondent offered traffic safety and aesthetics, but the Court found the regulations “hopelessly under-inclusive” as they did not deal with other signs causing similar effects, as they allied an unlimited (in time) posting of ideological signs and a multitude of political signs at election time.

The Court asserted that the public had ample content ­neutral means to deal with aesthetics and traffic safety ­­ by dimensional and physical limitations, for example and suggesting the world would not end if more signs resulted from litigation. The Court also stated that some traffic safety signs may survive strict scrutiny; However that issue was not before it and the differing regulations on ideological, political and qualifying event signs were content ­based and did not survive strict scrutiny. The Ninth Circuit decision was thus reversed and remanded.

Justice Alito, joined by Justices Kennedy and Sotomayor, concurred and further described how signs may be constitutionally regulated, including limits on size, location, lighting, attachment to other structures, regulation of moving messages, placement on public or private property, differences based on zoning districts, onsite or offsite status, number of signs per roadway mile, onetime signs or signs placed by government action following the Court’s decision in Pleasant Grove City v. Summum, 555 U.S. 460, 467­69 (2009). This latter category appears to exempt government signs on public property from content neutrality requirements.

Justice Breyer concurred in the judgment, sounding caution in the formulaic use of strict scrutiny in every content based sign code distinction. While that analysts is helpful when a public forum or viewpoint discrimination is involved, government programs almost always involve content discrimination, such as securities regulation, drug or energy ­conservation labeling, reporting of child abuse or comic able diseases and the like, many of which do not involve commercial matters. While he rejects watering down the strict scrutiny test, Justice Breyer suggests it be a “rule of thumb” in most cases outside the public forum or viewpoint discrimination areas to examine whether the regulation is disproportionate to First Amendment interests in light of regulatory objectives. Such an approach would allow regulation of speech by voters where courts “should hesitate to substitute judicial judgment for that of administrators.” In any event, Justice Breyer joined Justice Kagan’s concurrence in the Court’s judgment.

Justice Kagan’s, joined by Justices Breyer and Ginsburg, concurred in the judgment, pointing out that numerous local sign codes exempt or permit various sign categories ­­ “pedestrian crossing” or “George Washington Slept Here” being examples, which codes are now seen as content based and subject to strict scrutiny. She asked rhetorically whether a town had a compelling state interest to say “George Washington Slept Here?” Justice Kagan’s found the traditional justifications for strict scrutiny may not apply in such low ­level situations, as they do not interfere with the marketplace of ideas or impose viewpoint or subject matter limitations on speech. If those concerns are not present and the risk is inconsequential, strict scrutiny is unwarranted and sweeps too broadly than the actual harm to free speech interests. Justice Kagan suggested the court exercise common sense, leaving intact laws that do not violate these interests. She noted that in Members of the City Council v. Vincent, 466 U.S. 789 (1984) and more recently in City of Ladue v. Gilleo, 512 U.S. 43 (1994), the Court passed over such distinctions and in City of Renton v. Playtime Theatres, 475 U.S. 41, 46 (1986), the Court used intermediate scrutiny to deal with distinctions between adult and other films shown by a movie house. Justice Kagan suggested using Ladue here, under which the Gilbert code would. To pass strict or intermediate scrutiny (“or even the laugh test”) as there was no coherent justification for the distinctions made. There was no reason to apply strict scrutiny here and the Court risks becoming the “Supreme Board of Sign Review” without any necessary First Amendment justification.

Justice Kagan’s concerns are certainly justified. In the light of this decision, what is the justification for distinguishing between commercial and noncommercial signs or between onsite and offsite signs? One must read the content of the sign to make such regulatory decisions if regulation is to be done at all. The principal opinion suggests that traffic signs “may” survive strict scrutiny, but what if the multitude of other public or private signs that are not traffic related? Perhaps Summum will allow the public to use its proprietary and regulatory powers to deal with some signs, but that response is insufficient to deal with the host of sign issues facing local governments today. Let us hope we will not have wait another twenty years for answers from a Sphinx­like high court.

Reed v. Gilbert, No. 13­502, June 18, 2015.

Sauvie Island Plan Moving Forward

Fresh Fruit on sale at the Public MarketThe Multnomah County Planning Commission culminated a two year long planning process on Monday June 1, 2015, by approving a new Sauvie Island/Multnomah Channel rural area plan and forwarding it to the Multnomah County Commission for final adoption.  The Commission’s action sets the stage for the island’s future, addressing a wide variety of issues.  Of particular interest was the approach to floating homes, agri-tainment and transportation.

Sauvie Island is one of the closest rural areas to downtown Portland and is special to many people, including the residents of the island, as well as the generations of Portlanders who have picked berries, ridden bikes and gone to the beach on the island.  The difficulty is that, as Portland grows, the island runs the risk of being loved to death.  The new rural area plan is an attempt to address some concerns before they turn into crises.

The first area of concern involves floating homes.  The Multnomah Channel is home to 18 marinas and over 200 floating homes.  An issue that arose in the planning process is how much those marinas would be allowed to expand.  Language in the previous rural area plan would have allowed future development in those marinas at an urban density of one home every 50 feet of waterfront, resulting in a significant increase of residences in this rural area.  The rural area plan approved by the planning commission would limit marinas to only those homes already allowed pursuant to existing County land use approval. Continue Reading

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