Housing Land Advocates Conference – Equity in Form and Function: Recent Trends in Housing Policy

Jennifer Baragar, Garvey Schubert Barer

Garvey Schubert Barer is pleased to sponsor Housing Land Advocates’ Conference – Equity in Form and Function: Recent Trends in Housing Policy on November 7, 2014. Ed Sullivan and Jennifer Bragar will be featured speakers, and will be joined by other experts from across the nation. Join us for a 10th Anniversary Celebration of Housing Land Advocates’ work!

November 7, 2014, Ed Sullivan and Jennifer Bragar, will present during the Housing Land Advocates Conference on at David Evans and Associates, 2100 Southwest River Parkway, Portland, OR 97201.

See below for more details and links to conference registration, or learn more at www.housinglandadvocates.org.

Housing Land Advocates

Equity in Form and Function: Recent Trends in Housing Policy
Cosponsored by: Housing Land Advocates, Garvey Schubert Barer, and David Evans and Associates

Housing features prominently in the public discourse of 2014. The tiny house movement is gaining popularity with DIY builders, private developers are racing to complete micro-apartments, and democratically run self-help homeless communities are are seeking recognition along the West Coast. This year’s Housing Land Advocates (HLA) conference continues these conversations but with a focus on the geography of equity. It asks how emerging housing forms can be used to further affordable and fair housing. It emphasizes the function of housing as a means of accessing opportunity. To this end, the conference offers an analysis of the U.S. Department of Housing and Urban Development’s new regulations around affirmatively furthering fair housing and updates participants on the legal landscape of inclusionary zoning that is being tested by California Building Industry Association v. City of San Jose. HLA is bringing together national, regional and local experts to explore these concepts and issues and to consider ways to support a community vision that does not leave anyone behind.

Keynote Speaker: Marc Brenman
Teacher, author and policy expert on issues of diversity, equal opportunity employment and social justice, Mr. Brenman previously worked as the Executive Director of the Washington State Human Rights Commission, Senior Policy Advisor at the U.S. Department of Transportation, and Division Director for the Office of Civil Rights at the U.S. Department of Education.

Conference Schedule
9:00am Welcome from HLA President Jennifer Bragar
9:15am Affirmatively Furthering Fair Housing: Proposed Regulations and Actions to Consider
9:45am Inclusionary Zoning: Legal Developments
10:30am Morning Panel – Housing Affordability & Neighborhood Change
12:00pm Lunch and Keynote Speaker: Marc Brenman – Title VI Transportation Planning and Fair Housing
1:00pm Organized Networking Opportunities
1:30pm Gentrification: A Talk about N/NE Portland
2:00pm Afternoon Panel – There Goes the Neighborhood: Emerging Housing Alternatives
3:30pm Afternoon Panel – Inclusionary Zoning: Threats and Opportunities

AICP and Oregon State Bar CLE credit pending

Conference Location:
David Evans and Associates
2100 Southwest River Parkway, Portland, Oregon 97201

Who We Are:
Housing Land Advocates was formed in 2004. We are a 501(c)(3) charitable corporation, and pursue our work as an entirely volunteer-run and -operated organization. We advocate for land use policies and practices that ensure an adequate and appropriate supply of affordable housing for all Oregonians.

Online Registration

Paper Registration Form & Instructions available on Housing Land Advocates website

Visit the website: http://housinglandadvocates.org/ for updates on conference speakers and registration information.  Contact HLA at info@housinglandadvocates.org for conference sponsorship opportunities.

 

CALIFORNIA APPELLATE COURT FINDS NO DISCRETIONARY IMMUNITY FOR INFORMAL DESIGN APPROVAL OF PUBLIC WORKS

Motocyclist on country roadMartinez v. County of Ventura, 2014 WL 1372028 (Cal. App.) was a personal injury suit over an accident involving plaintiff motorcyclist who was injured when he struck an asphalt berm abutting a raised drain on a county road. The drain system used a heavy steel cover eight to ten inches off the ground with a sloped asphalt berm to channel water into the drain. Defendant County, which managed the road, responded with, among other things, a design immunity defense but brought forth no evidence of any engineering design plans. The County’s road maintenance engineer testified that he “probably” approved the design and there was no other testimony regarding design or engineering. The maintenance engineer was not a licensed engineer and there was no testimony or evidence to show any scientific of engineering analysis for the subject public work – in fact, testimony was that such works were designed “in the field,” and evolved based on practical experience rather than professional design. Plaintiff appealed a verdict favorable to Defendant County based on design immunity.

Plaintiff’s appeal was predicated on insufficient evidence to support the immunity defense. In reviewing a jury verdict, the Court looked only to whether there was substantial evidence to support the same. The Court set out the applicable law as follows:

[California public entity tort law] provides that public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventative measures. A public entity may avoid liability for a proven dangerous condition of its property by proving the affirmative defense of “design immunity.” * * *

The Court added that the purpose of design immunity was to prevent a jury from second guessing a local entity’s design or engineering judgment where reasonable people may differ. Under California case law, discretionary design immunity involves three elements:
1. Approval of a plan or design prior to construction;
2. A causal relationship between the plan or design and the accident; and
3. Substantial evidence supporting the reasonableness of the plan or design.

All three elements must be planned and proved by a defendant public entity.

In this case, the Court focused on the discretionary approval criterion as Plaintiff alleged there was no exercise of discretion involved in this case. The evidence showed no previously approved design or plan for the drainage system. Moreover, there was no approval of the project by anyone in the County system having discretionary immunity. The maintenance engineer did not have authority either by virtue of his position or by delegation.

Finally, the Court rejected the County’s contention that the use of this drainage plan in practice for 25-years constituted discretionary approval, as it had no basis in precedent and, in the Court’s view, would greatly expand this branch of immunity beyond what the legislature had authorized. In the absence of such immunity, a public entity is liable for reasonably foreseeable injuries proximately caused by a dangerous condition of its property. The immunity was designed to prevent second guessing decisions by engineers or design professionals exercising their discretion. The record fails to show that the claimed immunity has a basis in fact. Accordingly, the jury verdict was remanded to consider other issues raised by the County but not reached.

Oregon, like California, recognized discretionary immunity to prevent second guessing professional decisions. This case demonstrates the limits of such discretion.

Martinez v. County of Ventura, 2014 WL 1372028 (Cal. App.)

Does a Property’s Sale Price Really Equal the Taxable Market Value?

Does a Property’s Sale Price Really Equal the Taxable Market Value?
By Cynthia M. Fraser, Esq., as published by National Real Estate Investor – nreionline.com/viewpoints, September 2014

Typically, the basic principles of a real estate appraisal for commercial and industrial properties are based on market value—the price the buyer and seller agreed upon at the point of sale. In the current economy, as we emerge from the recent recession, many real estate assessors are questioning whether the purchase prices for commercial and industrial properties reflect their true market value. In today’s competitive real estate market, many real estate investors are faced with the following question: Is the recent sale price of a property the best evidence of the property’s taxable value?

Houses that look like a stock market graph going down.

Please see the complete article published in National Real Estate Investor September 9, 2014.

Cynthia M. Fraser is a partner at the law firm Garvey Schubert Barer where she specializes in property tax and condemnation litigation. Ms. Fraser is the Oregon representative of American Property Tax Counsel, the national affiliation of property tax attorneys. Ms. Fraser can be reached at cfraser@gsblaw.com.

A Quick Primer on Unwritten Easements

Old railroad trackThere are three types of easements that can be created without an express agreement: an implied easement, an easement by necessity, and a prescriptive easement. It is not uncommon to see all three types of unwritten easements pled in a lawsuit seeking quiet title even though the elements for establishing each type of easement are quite different.  The following is a quick primer of the elements necessary to establish each type of easement where there is no written agreement to convey an easement.

Implied Easement.  An implied easement can only be created where property held under one ownership is divided into separately owned parts.  An easement may be implied when the circumstances existing at the time ownership is divided establishes that the grantor intended to create an easement.  The following factors are considered by the Court in deciding whether an implied easement exists: (1) whether the claimant is the conveyor or the conveyee; (2) the terms of the conveyance; (3) the consideration given for it; (4) whether the claim is made against a simultaneous conveyee; (5) the extent of necessity of the easement to the claimant; (6) whether reciprocal benefits result to the conveyor and conveyee; (7)    the manner in which the land was used prior to its conveyance; and (8) the extent to which the manner of prior use was or might have been known to the parties. Cheney v. Mueller, 259 Or 108, 118-119 (1971). The Court of Appeals recently clarified that the key time point for analyzing whether the grantor intent to provide an easement is the date ownership of the land is divided and not the date the land was partitioned or platted. Manusos v. Skeels, 263 Or App 721, 730 (2014).  The Court of Appeals also clarified that the “necessity” needed to establish an implied easement is not the “absolute necessity” required for an easement by necessity (discussed next). Id. at 732.

Easement by Necessity. An easement by necessity is created when the following three factors are present: (1) unity of title in the grantor; (2) severance of ownership; (3) actual necessity.  Unlike an implied easement, an easement by necessity is terminated once the necessity ceases to exist.  Relling v. Khorenian, 261 Or App 1, 8-9 (2014).

Prescriptive Easement.  In order to establish a prescriptive easement, the claimant must show by clear and convincing evidence that they or their predecessors, under a claim of right, used the alleged easement adversely to the rights of the respondent or their predecessors for a continuous and uninterrupted period of 10 years.  Thompson v. Scott, 270 Or 542, 546, 528 P2d 509 (1974). It is important to note that the adverse possession statute (ORS 105.620), which includes the additional requirement of an “honest belief” of ownership by the claimant, does not apply to prescriptive easements. Uhl v. Krupsky, 254 Or App 736, 740-741 (2013).  Although courts recognize that a presumption of adversity arises from open and continuous use of property, that presumption may be rebutted by showing the use was permissive or by showing the claimant’s use of an existing roadway over a neighbor’s land does not interfere with the neighbor’s use.  Woods v. Hart, 254 Or 434, 437, 458 P2d 945 (1969).

Affordable Housing Win and in a Rare Decision, LUBA Could Award Attorney’s Fees

shutterstock_88865749In Parkview Terrace Development LLC v. City of Grants Pass, LUBA No. 2014-024 (July 23, 2014), LUBA considered the appeal of a City Council decision that denied the Petitioner site plan approval and a variance from street and block length standards to permit construction of 50 units of federally assisted housing for low-income individuals.

The subject property is zoned High Density Residential (R-3) and includes approximately 3.02 acres. The site is neighbored by residential townhouses, a warehouse, a mini-storage facility and a City park. In 2006, the City approved a planned unit development (PUD) for 88-units, but only 28 townhouses were constructed before the project was shelved during the recession. The Petitioner, a successor-in-interest to the original developer, wanted to build a 50-unit multi-family housing project in place of the second and third phases of the PUD. In contrast to the for sale townhouses, the new units would be rental units. Although the project was supported by staff and the Planning Commission, the City Council denied the application.

The applicant appealed because the City Council applied standards that were not “clear and objective” under the needed housing statute, ORS 197.307(4), and because the City Council erred in its findings related to variance criteria. LUBA agreed and reversed the decision. The following standards were not considered clear and objective:

• A standard that the proposal comply “with applicable elements of the Comprehensive Plan, including: Traffic Plan, Water Plan, Sewer Plan, Storm Drainage Plan, Bicycle Plan, and Park Plan,” where the City Council’s decision focused on the Traffic Plan which is an eight chapter long Master Transportation Plan. Many of the goals and objectives in the Traffic Plan are not clear and objective.
• A standard that requires “potential land use conflicts have been mitigated through specific conditions of development,” where the City Council concluded without explanation that the criterion was not satisfied. LUBA found that mitigation of “potential land use conflicts” is not clear and objective.
• A standard requiring that “adequate basic urban services are available, or can be made available by the applicant as part of a proposed development or are scheduled by the City Capital Improvement Plan.” The terms “adequate,” “basic urban services” and “available” are not explained in the Code, and without some explanation those terms are not clear and objective.
• A standard that the “provision of public facilities and services to the site will not cause service delivery shortages to existing development” was not clear and objective because the Code did not provide guidance regarding the scope of “public facilities and services” or how to go to determine if the proposal will cause service delivery shortages to existing development or what qualifies as a shortage.
• A standard regarding mitigation for special design consideration related to existing adjacent development was not clear and objective because the requirement to “mitigate” and the methods of suggested mitigation (e.g., landscaping, additional setbacks, and screening) were not clear and objective.
• A standard requiring that “traffic conflicts and hazards are minimized on-site and off-site” as provided in an Article of the Code was not clear and objective because the Council’s conclusion that the criterion was not satisfied did not explain minimization to on-site and off-site conflicts and hazards, and the Codes reference to a 32-page Article of the Code was too vague.
• A standard that requires “there are adequate provisions for maintenance of open space and other common areas” was not clear and objective, where the City engaged in a subjective analysis of whether the open space and common areas were “adequate.”

In addition to the failure of the City’s standards to meet the clear and objective requirement, the Council’s denial of a variance application was either similarly tainted, or impacts of a grant of the variance could have been mitigated through conditions.

Not only did LUBA reverse the City’s decision but required that the City approve the project in accordance with the Planning Commission’s decision and associated conditions. Stay tuned! This is the rare case where LUBA may consider a grant of attorney fees because the City Council’s findings were made in complete disregard to the Petitioner’s complaints that the standards were not clear and objective.

Moving Boundaries in the Modern Age: The Oregon Supreme Court Weighs in on Accretion

Oregon Coast beach sandIf, as expected, climate change and sea level rise become a bigger threat to private property in the 21st century, ancient doctrines about boundary changes, including accretion, reliction and avulsion will become increasingly important.  On August 14, 2014, the Oregon Supreme Court explained its view of accretion in Sea River Properties, LLC v. Parks, 355 Or 831 (2014).

The case arose just north of Rockaway Beach along the Nehalem River and involved grants of land that went back over a century and a half.  There was a complex geologic and factual background, but the question the court had to answer was who owned land that had generally built up west of the defendant’s land and north of the plaintiff’s land between the old bed of the Nehalem river (before the federal government built a jetty) and the ocean.  The Oregon Supreme Court chose not to exercise its ability to re-weigh the facts and, relying on the facts found by the trial court, concluded that “accreted land belongs to the upland owner where the accretion began,” even if it eventually grows in front of the property of another.

In itself, this case is not particularly surprising or interesting, but, as climate change continues to affect our world, these cases will only become more common and it behooves practitioners to understand the application of the common law property doctrines involved in shifting boundary lines.

The Old House gets New Life: LUBA Says Only the Initial Objector May Remove an Historic Property Designation

carrie_richterLast week in the case Lake Oswego Preservation Society v. City of Lake Oswego, LUBA gave a huge boost to the historic preservation community and the protection of local historic resources.  ORS 197.772 is one of the few statutes regulating how local governments designate and protect historic resources.  ORS 197.772(1) provides that where a property owner objects to any form of historic property designation, the local government must remove the designation.  Subsection (3) of the same statute requires that the local government “allow a property owner” to remove a historic designation that was previously “imposed by the local government.”  LUBA was asked to decide whether the term “property owner” is limited to the owner at the time that the designation was imposed or whether a person who becomes an owner after the designation was imposed, where the original owner objected to the designation, could also seek removal.

In 1990, the City of Lake Oswego designated the Carmen House, a historic farmhouse and barn, along with a number of other properties within the City’s historic landmark inventory.  The property owners at the time, Wilmot and Gregg filed an objection to the designation.  While the City’s decision was pending review before LUBA, a fire on the property destroyed the barn.  The City’s decision was withdrawn for reconsideration and as a result, the Carmen House was designated without the additional acreage and without further objection.  The Mary Caldwell Wilmot Trust, the current owner of the property, sought to remove the Carman House’s historic designation under ORS 197.772(3).  The City Council granted the request to remove the historic designation concluding that the term “property owner” is not limited to the owner at the time the property was designated.  The neighbors appealed that decision to LUBA.

LUBA began its analysis by focusing on the text and context of ORS 197.772(3).  LUBA found the text of the provision not terribly helpful because adding a phrase to limit qualifying property owners to those who made the initial objection would insert language into the provision just as including post-designation subsequent purchasers would also insert language, contrary to a law governing statutory construction.  Moving to the context, LUBA found the use of the same phrase, “a property owner” in both subsection (1) and (3) of the statute suggests that the two phrases have the same meaning and refer to the initial objecting property owner.  However, LUBA also noted that these two provisions have “different, non-overlapping circumstances that occur at different times,” suggesting an intent to describe different owners because the two categories are “mutually exclusive.”

What tipped the scales for LUBA was legislative history indicating that the purpose of subsection (3) was to allow property owners who “have been coerced into the historic property designation” to petition for removal.  When one of the legislators was asked whether a person who bought a piece of property that had a historic designation could seek to remove it, the response was “[w]e haven’t thought about that situation.”  A proposed amendment was offered that in cases where a local government designation occurs with concurrence from the local government, the obligation “runs with the land.”  LUBA found that “taken together,” subsection (3) and the proposed amendment would treat subsequent owners the same as the original owner.  If the designation was imposed over an objection, then a subsequent owner could request removal and conversely, if the initial owner consented, the subsequent property owner could not request removal.   This “run with the land” amendment was removed before final adoption.  Without any discussion explaining why the amendment was deleted, LUBA concluded that elimination of the additional language that would have put “subsequent owners on the same footing as the property owner” provides the “strongest inference” that the legislature did not intend this result.  From this analysis, LUBA concluded that, although it is “a close question,” the legislature did not intend for the term “property owner” to include person who become owners of property after it is designated and the City erred in removing the designation based on ORS 197.772(3).

LUBA’s decision went on to find that a property owner’s failure to continually raise the objection through later stages of a proceeding does not mean that the owner withdrew the objection or implicitly consented to the designation.  LUBA found that although Wilmot did not object to the subsequent designation of just the Carman House, Wilmot did not withdraw his previous objections.

LUBA’s decision makes sense from a policy perspective.  Once a historic inventory designation is in place, subsequent buyers, who are presumably aware of the designation, should be assumed to have bought the designation along with all of the obligations that come with it.  Removal of the designation is still possible through Goal 5 and its implementing rules, but not through an end-run, relying on the limited objection of a previous owner who subsequently elected not to pursue such a course.  After all, the value of a historic resource and its overall contribution to a community does not lessen when contemporary development pressures create incentives to develop that may have not existed when a resource is designated.

In a land use scheme that many argue is overly complicated and convoluted, it is interesting to note that historic preservation has very little, arguably a single relatively clear statutory standard, governing the protection has resulted in this case that will have a demonstrable impact on preservation efforts throughout the state.  The first of these cases, Demlow v. City of Hillsboro, LUBA narrowed the removal exception to those cases where the historic designation was “imposed on the property”.  Now, LUBA has narrowed the exception further to the current owners that object.  This is a narrow exception indeed.  Now we will wait to see if the Court of Appeals is asked to review or if the legislature decides to enlarge or alter the standard.

Note:  This firm represents the City of Lake Oswego in some limited matters unrelated to this case.

Garvey Schubert Barer Land Use Attorney Edward J. Sullivan is Honored with a Lifetime Achievement Award

Ed Sullivan accepting his awardThe American Bar Association State and Local Government Section has honored Edward J. Sullivan with the Jefferson Fordham Lifetime Achievement Award.

Ed Sullivan’s distinguished legal career spans 45 years and has had significant impact on Land Use law in Oregon. Throughout his career, he has championed sound land use planning, the provision of affordable housing opportunities, and the protection and preservation of resource lands throughout Oregon and beyond.

Carrie Richter, co-chair of the Garvey Schubert Barer Land Use Group with Ed Sullivan, and his colleague for the past 10 years, said, “Ed’s accomplishments speak for themselves. He has shaped the Oregon land use system, starting with his influence on the seminal Senate Bill 100 drafting and adoption, taken land use battles to the United States Supreme Court, and proposed innovative approaches to ensure that sufficient urban land is available for affordable housing development.”

Ed Sullivan’s accomplishments have included work with major landmark cases in the history of Oregon State Land Use Law. The most notable cases that Ed has been involved in are Fasano v. Washington County Board of County Commissioners, and Baker v. City of Milwaukie. Both are Oregon Supreme Court cases that uphold the necessity to guarantee fair, reviewable and predictable decision-making in Oregon land use.

Before entering private practice, Ed worked for the then governor of the State of Oregon, Robert W. Straub.

According to Dwight H. Merriam, FAICP, attorney with the Hartford, Connecticut-based law firm, Robinson & Cole, “Ed has represented developers, property owners, governments, individuals, and many advocacy groups. His writings, teaching and lecturing reflect his synoptic and inclusive view of what land-use law and the Rule of Law mean for all stakeholders, and importantly, for those who are disenfranchised in the decision-making process, and for generations not yet born.”

Within the land use law community, education regarding comprehensive and coordinated land use planning is of the utmost importance. Over the past 25 years, Ed has taught land use planning law to planners and law students at Lewis and Clark Law School, Willamette University College of Law, and Portland State University. He speaks on a variety of land use planning topics all over the world. His most recent presentations include a discussion of urban grown boundaries at the Planning Law and Property Rights conference in Israel, as well as speaking engagements in Athens, Greece and Sydney, Australia.

Ben Griffith, Attorney with the Cleveland, Mississippi-based law firm, Griffith & Griffith, noted that “Ed has generously given his time, expertise and desire to advance and improve this vital component of the rule of law, through participation in scores of international conferences and symposia from the Pacific Rim, The Peoples Republic of China, and Australia to Eurasia, Eastern and Central Europe, the nations comprising the European Union and beyond. A born educator, advocate and counselor, Ed has inspired a younger generation of land use specialists to take on the mantle of public advocacy and public sector leadership, while maintaining a balanced perspective that is evidenced in his law firm, countless community contributions and personal friendships that span the globe.”

Ed Sullivan has published hundreds of articles and commentaries in everything from academic journals and legal industry trade publications, such as the Urban Lawyer, to many newspapers and community newsletters. His publications include a series of articles tracking the history of land use values in Oregon, which are encyclopedic in depth and cover experiential-based explanations of efforts to preserve farmlands, forest lands, and to still provide public infrastructure. He also tracks, and annually publishes an article exploring the role that the comprehensive plan plays in governing local government decisions for the American Bar Association. Due to the combination of his law practice, his teaching and many publications, Ed Sullivan is widely held to be an expert in his field, and is often the first person lawyers and planners rely on for counsel.

For over four decades, Ed Sullivan has dedicated himself to the Oregon State Bar and has served as the editor of the Oregon State Bar Land Use publication. He has also served as an associate editor of the Real Estate and Land Use Digest, the bi-monthly summary of land use cases and other real estate and land use developments for the Oregon State Bar. His many accomplish-ments include advocating for affordable and disabled housing; he founded, and is the past chair of, the Housing Land Advocates, dedicated to ensuring that land is available for the construction of affordable housing

Long known to be a mentor to law students, an educator to the legal community and to the public, he has been an advocate to many and has dedicated his career to serving the community with the highest standards of professionalism, integrity and commitment.

Patricia E. Salkin, Dean of Touro College’s Jacob D. Fuchsberg Law Center, said, “On a more personal level, throughout his career Ed has been a gracious mentor. As a long-time leader within the ABA State and Local Government Law Section, Ed has encouraged and supported my active involvement. He has brought other young lawyers – men and women – into the State and Local Section, and as a result, he is responsible in part for a healthy, sustainable future of the State and Local Government Law Section. Ed is a busy family man, a focused and successful lawyer, and an inquisitive person who has done much to advance the field of state and local government law. I can think of no one more deserving of the Jefferson Fordham Lifetime Achievement Award than Edward J. Sullivan.”

Jennifer Bragar, Ed’s colleague at Garvey Schubert Barer, said, “Ed Sullivan’s professional life has so overlapped with his personal commitment to excellence and public service that even this award fails to capture the magical quality and love of the law he bestows on those he works with, collaborates with and teaches.”

Ed Sullivan has touched the lives of so many and yet he attributes much of the support he gets from his family, his wife Patte, his four children and seven grandchildren.

http://www.prweb.com/releases/2014/08/prweb12088067.htm

NEW YORK APPELLATE COURT AFFIRMS SLAPP SUIT DISMISSAL AND ATTORNEY FEE AWARD

new york map magnifiedSouthampton Day Camp Realty, LLC v. Gormon, 2014 WL 2871806 (App. Div., NY) involved the appeal of a decision by the Chief Building Inspector of the Town of Southampton that a nonconforming tennis and racquet club could be converted into a children’s day camp without a variance.  Defendants were neighbors who opposed that conversion without a variance and appealed the Chief Inspector’s decision to the Board of Zoning appeals.  Defendants also distributed a flyer which suggested that Plaintiffs did not care about the environmental effects of the conversion and had lied to town officials.  Plaintiffs then sued Defendants for defamation.  Defendants moved to dismiss the suit, contending that the action constituted a Strategic Lawsuit Against Public Participation (“SLAPP”) suit and sought dismissal, attorneys’ fees and punitive damages.  Before discovery, Defendants moved for summary judgment on their complaint and the counterclaim.  The Trial Court dismissed the complaint and awarded attorneys’ fees, but denied Defendant’s request for punitive damages.  Both parties appealed.

The Appellate Division noted that New York’s SLAPP Suit litigation entitles a qualified defendant to dismissal, as well as attorneys’ fees and costs.  A plaintiff must demonstrate that the lawsuit has a “substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law.”  Defendants demonstrated that Plaintiffs were permit applicants and their communication was “materially related” to their efforts to report or comment upon, or oppose, this application and the communication was part of an effort to garner support for their opposition.

The Appellate Division ag

NEW YORK APPELLATE COURT LIMITS TRANSFERRABLE DEVELOPMENT RIGHT CREDITS

new york map magnifiedTuccio v. Central Pine Barrens Joint Planning & Policy Commission, 113 A.D.3d 693, 978 N.Y.S.2d 350 (2014) involved a declaratory judgment proceeding in which the Petitioner contested an award of 18.46 Pine Barrens Credits to his property, instead seeking 50.42 Pine Barrens Credits and appealing from the dismissal of the proceedings in the lower court.  The Pine Barrens Credits program allocates transferable development rights to owners of property located within the “core preservation area” of the Central Pine Barrens in Long Island under the Long Island Pine Barrens Protection Act (the “Act”).

Initially, the Pine Barrens Commission denied Petitioners’ request for any Pine Barrens Credits, finding that there was no justification for any credits under the Act.  Petitioners then brought a declaratory judgment proceeding seeking the 50.42 Pine Barrens Credits asserted to be owed under the Act.  In the first iteration of this case, the Appellate Court determined there was no clear legal right to the 50.42 Pine Barrens Credits but there were other factors in the allocation formula so that some credits were available.  On remand, the Commission determined that only 20% of the property could have been developed under the local zoning code and, acting as the clearinghouse, the Commission determined that 18.46 Pine Barrens Credits should be allocated.  Petitioner again sought declaratory relief but the trial court denied relief and petitioner again appealed from the dismissal of their declaratory judgment petition.

The Court determined that the law of the case doctrine precluded a request for the 50.42 Pine Barrens Credits and that the Commission acted consistently with the appellate court directive and thus affirmed the Commission’s decision.  Implicitly, the appellate court agreed that the amount of the credits was related to the intensity of allowable development.

This case presents another aspect of the “law of the case” doctrine and also appears to limit transferrable development rights solely to compensate a land owner for actual, rather than speculative, lost development opportunities.

Tuccio v. Central Pine Barrens Joint Planning & Policy Commission, 113 A.D.3d 693, 978 N.Y.S.2d 350 (2014).

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