Right 2 Dream Too: LUBA Says “Keep on Dreaming…”

The Central Eastside Industrial Council and other interested businesses sought LUBA review of the City of Portland’s decision that a houseless rest area and tent camp for houseless persons was a Community Service Use allowed in the General Industrial Zone (IG1 Zone). The city’s decision would have allowed the Right 2 Dream Too (“R2DToo”) Camp to relocate from downtown Portland to land near Oregon’s Museum of Science and Industry. The subject property is designated as an industrial sanctuary in the city’s Comprehensive Plan.

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2016 Housing Land Advocates Conference: Seeking Prosperity: The Role of Housing in Local Economies


Garvey Schubert Barer is proud to sponsor the 2016 Housing Land Advocates Conference: Seeking Prosperity: The Role of Housing in Local Economies held on Friday, November 4, 2016 at David Evans & Associates in Portland, Oregon.

HLA’s 2016 Conference focuses on the role of housing in local economies. This year’s speakers represent diverse perspectives, including economic forecasters, economic development professionals, city and county leaders, business and industry representatives, and urban planning researchers. The conference will delve into challenges and opportunities related to workforce housing, the impact of short-term rentals in rural and urban destination communities, and the connection between housing availability and affordability and regional growth. The HLA Conference will bring together national, regional and local experts to explore these concepts and consider ways to meet housing needs while growing local economies.

For more information on the Conference, please visit the Housing Land Advocates’ website.

To register, please visit HLA’s Eventbrite registration page.

Ninth Circuit Reverses Denial of Injunction in RLUIPA Case

coexist_orig Flickr Photo SharingIn Harbor Missionary Church Corp. v. City of San Bueanaventura, 642 Fed. App. 726 (9th Cir., 2016), plaintiff had a church ministry serving the homeless. Defendant told Plaintiff it needed a conditional use permit (CUP) and, when it applied for the same, denied it. Plaintiff then brought a suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), requesting a preliminary injunction to keep its ministry available pending appeal. The trial court denied the injunction, finding the church suffered no substantial burden under RLUIPA because it could move its ministry elsewhere and that the denial of the CUP was the least restrictive means of meeting the City’s concerns.

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Fifth Circuit Upholds Stringent Sentence in Zoning Bribery Case

U.S. v. Grace, 640 Fed. Appx. 298 (5th Cir., 2016) involved the disposition of a sentencing remand by the Fifth Circuit in a zoning bribery case. Defendant mayor was charged with 13 counts of corruption involving four schemes, and was convicted on seven of those counts. The jury acquitted defendant on the remaining counts. In the first appeal, the court upheld the convictions, but remanded the case for resentencing, finding the trial court erred in its calculations.

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Connecticut Court Finds No Zoning Authority Liability for Discretionary Acts

Folsom v. Zoning Board of Appeals of Milford, 160 Conn. App. 1 (2015) involved the appeal of an unrepresented plaintiff who had successfully appealed a zoning enforcement officer’s issuance of a certificate of zoning compliance to his neighbor who wished to build a structure on adjacent property.  Plaintiff then sought reimbursement for his incurred for that appeal, plus interest.  On motion, that complaint was struck.  Plaintiff filed another suit, alleging the zoning enforcement officer was personally liable to plaintiff for failure to enforce the zoning ordinance, that the Board of Zoning Appeals was liable for failing to disqualify itself from the underlying case over a conflict of interest, and the defendant city was liable to plaintiff for reimbursement of his costs.  That complaint was also struck and plaintiff appeals the grant of both motions to strike.

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Ninth Circuit Finds No Due Process Right to Notice in Lot Line Adjustment Case

A memorandum opinion in Neighbors for Fair Notice v. City of Seattle, 2016 WL 2754536 (9th Cir., 2016) disposed of a case in which Plaintiffs complained that Defendant City did not provide them with personal notice in approving a lot boundary line adjustment, contending that Washington’s Land Use Petition Act (LUPA) provided them with a protected property interest in the City’s proceedings in which a minimum lot size of 5000 square feet for single family homes could not be changed without those proceedings.  The trial court dismissed the case finding no cognizable property interest under the circumstances.  The trial court said that “only those rules and understandings that support legitimate claims of entitlement give rise to protected property interests” require notice and found that LUPA did not create such an interest so as to require notice.

The Ninth Circuit found the dismissal proper and affirmed.  Because there was a discretionary decision and no vested right created under state law, the decision appears to be correct from a due process point of view.  The due process clause of the Fourteenth Amendment protects “life, liberty and property” interests; thus, a plaintiff must show the existence of such an interest.  Because Plaintiffs could not show the existence of such an interest, there was no constitutional claim to pursue.

Neighbors for Fair Notice v. City of Seattle, 2016 WL 2754536 (9th Cir., 2016).

Non-Binding Policy Document Produced by a White House Council Without a Chairman Nevertheless Expected to Have Significant Impact on NEPA Studies and Climate Change

Aaron Edelman is a guest author and a law clerk at Garvey Schubert Barer’s Washington, D.C.’s office. You can reach Aaron at aedelman@gsblaw.com or at 202.298.1738.

The White House Council on Environmental Quality (CEQ) recently issued its final guidance to agencies to incorporate greenhouse gas (GHG) emissions and climate change into environmental reviews done in accordance with the National Environmental Policy Act of 1969 (“NEPA”). This release was the culmination of six years of work – building off of drafts released in 2010 and 2014.

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Metro Reserves: So Close, but yet So Far

In 2007, when the legislature established a system for designating urban and rural reserves, many observers saw the reserve process as a panacea to deal with the contentious process of changing the Portland Metro urban growth boundary (UGB). Under the urban reserve process, identifying urban land needs based on a 50-year projection rather than the historic 6-year cycle for changing the UGB, lands designated urban reserve would stand in the queue prioritized for inclusion in the UGB when expansion was appropriate. Similarly, land within any rural reserve was off-limits for consideration within the UGB within that same 50-year planning period.

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Oregon Supreme Court Narrowly Construes Statewide Owner Consent Law for Historic Property Designation – Limited to the Current Owner

Carman-HistoricThe City of Lake Oswego added the Carman House to its inventory of historic landmarks in 1990, pursuant to Statewide Planning Goal 5.  The oldest extant residential structure within the City, the Carman House is considered a rare and valuable example of a territorial Oregon residence.  The owners at the time, Mr. Wilmot and Mr. Gregg filed an objection to the designation.  However, since the city could designate a property as historic without a property owner’s consent, the property was designated over the owners’ objections.

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Just Because It’s on the Plat Doesn’t Mean It’s an Implied Easement

Dayton v. Jordan, — P3d — (2016)

It is well established that a plat is generally sufficient to establish an express easement if it describes and depicts a roadway or trail sufficiently to reflect the intention to create an easement. Bloomfield v. Weakland, 224 Or App 433, 445-48 (2008), rev den, 346 Or 115 (2009).  In cases where a plat is insufficient to establish the intent to create an express easement, an easement may nevertheless be implied. In the typical case, an implied easement is not reflected in a deed or plat. Rather, it arises as an inference of the intention of the parties based on the circumstances existing at the time the land was divided and conveyed.  In those circumstances, the trial court applies the eight factor test established in Cheney v. Mueller, 259 Or 108, 118-19 (1971) to determine whether implied easement exists.  In Dayton v. Jordan, the Court of Appeals addressed the question of whether the trial court may short cut the Cheney test by implying an easement based almost exclusively on the depiction of the purported easement on the plat.  The Court of Appeals determined that the eight factor Cheney case must always be applied to establish an implied easement – even where the purported easement is depicted in a plat.

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