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

Court of Federal Claims Finds Corps of Engineers Liable for Lower Ninth Ward Flooding Damages

I-stock Flooding photoSt. Bernard Parish Government v. United States, 2015 BL 127431 (Fed. Cl. May 01, 2015) was a takings claim brought by a local government and property owners affected by flooding by various hurricanes between 2005 and 2009.  Plaintiffs alleged that the U.S. Army Corps of Engineers (USACE) was negligent in failing to maintain a 76 mile long navigational channel and that this failure, combined with storm surges resulted in the damage and made these claims cognizable under the Federal Tort Claims Act and Louisiana tort law.  In previous litigation, the courts had made a factual finding that the USACE was negligent, but also found the USACE had discretionary immunity under the Torts Claim Act.  This phase of the case dealt with Plaintiffs’ takings claims.  The record showed that there were clear concerns that the USACE work would compromise the ability of the soils to hold together in the event of storm surges, that the USACE was more focused upon providing for navigability of waterways over safety of shorelands and starved for fiscal resources for the full works.  The court found that the Mississippi River—Gulf Outlet Channel (MRGO) was a “funnel” of destruction and had already destroyed several thousand acres of wetlands in its creation.  The federal government was contemplating its closing the MRGO when a series of hurricanes, including Katrina and Rita, caused great damage to the area.

The court determined it had jurisdiction under the Tucker Act, 28 U.S.C. § 1491 to deal with damage claims against the federal government under other substantive law, such as the Takings Clause, and found that the law of the case had already established standing.  The court also found sufficient lay and expert testimony to support the connection between the construction of the MRGO and the damages claimed on the basis of a temporary taking.  Under Arkansas Game & Fish Comm. v. United States, 133 S. Ct. 511, 522-23 (2012) the plaintiff in a temporary takings case must plead and prove:

(1) a protectable property interest under state law; (2) the character of the property and the owners’ “reasonable-investment backed expectations”; (3) foreseeability; (4) causation; and (5) substantiality.

Continue Reading

Pre-Emption Puzzle: Local Government May Zone to Prohibit Collective Medical Marijuana Gardens Notwithstanding State Law Authorization

Marijuana plantCities and counties don’t always have the power to regulate on anything they please.  Sometimes local action is pre-empted by state or federal law, but determining when local government action is pre-empted is often tricky business.

The general rule in Washington (and Oregon) is that local governments are authorized to make and enforce all laws necessary to further its police power, including zoning laws, so long as they do not directly conflict with state or federal laws.  The Medical Use of Cannabis Act (MUCA), enacted in 2010, codified at RCW 69.51A.085(2), authorized patients to establish collective gardens for growing medical marijuana.  “Collective gardens” are defined by state law to include group efforts to pool resources and grow medical marijuana for patients’ own use.  The MUCA further clarified that local governments retain authority to regulate the production, processing or dispensing of medical marijuana through zoning, business, licensing, health and safety requirements, and business taxes.  RCW 69.51A.140.  Relying on this zoning authority, the City of Kent, Washington enacted an ordinance that prohibited “collective gardens” in every zoning district within the city.

In the recent case, Cannabis Action Coalition (CAC) v. City of Kent, the Washington Supreme Court was asked whether the MUCA authorization for “collective gardens” preempts the Kent ordinance banning them. A statute preempts the field and invalidates a local ordinance “if there is express legislative intent to preempt the field or if such intent is necessarily implied…from the purpose of the statute and facts and circumstances under which it was intended to operate.”  The Court found no express preemption clause, leaving the question of whether preemption is implied.  CAC argued that the express authorization allows cities to zone only commercial production and processing of marijuana and not non-commercial collective gardens.  The court rejected that argument, finding nothing in the express language that distinguished between a profit or the shared use collective garden activities.  The Court went on to find that, although state law prohibits local governments from opting out of medical marijuana altogether, the local ordinance concerned a particular land use, collective gardens, and did not address the personal use of medical marijuana.  Accordingly, the Court found that the City’s ordinance was not pre-empted.

Justice Gonzalez provided an interesting dissent explaining that, although a city may regulate consistent with the MUCA, it may not completely ban what the state permits.  The majority failed to acknowledge that participation in collective gardens is legal under state law and, as a result, Gonzalez asserts, the city may not enact regulations, zoning or not, that prohibit this lawful activity.

It is also important to note that while this appeal was pending, the legislature enacted comprehensive reform concerning the regulation of medical marijuana in Washington including repeal of the statutory provisions authorizing collective gardens.  Laws of 2015, ch. 70.  That said, this case provides an interesting commentary as the Washington Supreme Court prepares to decide whether to hear a case challenging cities’ and counties’ authority to ban licensed recreational marijuana retailers and the legislatures of both Oregon and Washington work to fashion regulations surrounding the production, processing and distribution of both medical and recreational marijuana that focus on standards controlling activities and revenue rather than land use.

Warning Regarding Federal Law: The possession, distribution, and manufacturing of marijuana is illegal under federal law, regardless of state law which may, in some jurisdictions, decriminalize such activity under certain circumstances. Federal penalties for violating the federal Controlled Substances Act (the “CSA”) are serious and, depending on the quantity of marijuana involved, can include criminal penalties of up to 20 years in prison and/or a fine of up to $2,000,000. 21 U.S.C. § 841. The penalties increase if the sale or possession with intent occurs within 1,000 feet of a school, university, playground, or public housing facility. 21 U.S.C. § 860. In addition, the federal government may seize, and seek the civil forfeiture of, the real or personal property used to facilitate the sale of marijuana as well as the money or other proceeds from the sale. 21 U.S.C. § 881. Although the U.S. Department of Justice has noted that an effective state regulatory system, and compliance with such a system, should be considered in the exercise of investigative and prosecutorial discretion, its authority to prosecute violations of the CSA is not diminished by the passage of state laws which may permit such activity. Indeed, due to the federal government’s jurisdiction over interstate commerce, when businesses provide services to marijuana producers, processors or distributors located in multiple states, they potentially face a higher level of scrutiny from federal authorities than do their customers with local operations.

Book Review: Urban Agriculture: Policy, Law, Strategy, and Implementation

Apricots photoThe deep orange of a perfect apricot at the end of the long, hot summer, along with the grapevine that transformed our side yard into the secret garden – these are stark memories of my childhood.  The sensory experience sticks with me – the smell of ripe fruit, the clear blue sky, the dripping heat and the endless summer break.  These memories tie me to the earth and live on in my urban gardening heart.  In my first summer college internship for the County of Ventura Planning Department, I drafted regulations for roadside fruit stands – just how big of a stand should be allowed without a permit?  Follow the Southern California experience with Santa Cruz, surrounded by some of the most fertile lands in Central California where I had taste tests between organic and traditional strawberries, and on to Portland where the running joke is that you can source the chicken and honey at the Imperial á la a Portlandia episode.  Given this background, it comes as no surprise that I had the opportunity to peer review the American Bar Associations’ recently published Urban Agriculture: Policy, Law, Strategy, and Implementation.

Any planner or lawyer interested in this topic should consider this Urban Agriculture book a valuable resource.  It answers questions from municipal ownership of urban farms and garden plots, to how urban farming is a first step towards neighborhood revitalization and serves to bridge the gap to access to fresh foods in low-income neighborhoods.  One author examines Detroit’s concerted effort to use urban farming to empower residents and rebuild the inner-city while improving the environment and lowering the heat-island effect, curbing illegal dumping and other criminal activity, providing a catalyst and opportunity for young people to pursue careers in agriculture, and most importantly provide access for community residents to fresh food for all income levels. Continue Reading

Not So Recent Court of Appeals Case Grants Improvement Districts Statutory Right to Enter onto the Lands of Its Members

I-Stock waterImprovement districts are authorized by statute to construct and operate permanent utilities for irrigation, drainage, diking, water improvement and water control throughout the State of Oregon.  See Oregon Revised Statutes Chapters 545, 547, 551, 552 and 549.  In some instances, the permanent utilities constructed and operated by these districts have been in existence for over 100 years.  Often, these districts do not have title to the land on which the permanent utility is located nor do they hold recorded easements allowing access to maintain the infrastructure of the permanent utility.  The lack of recorded property rights can lead to uncertainty as to what rights a district has to enter onto its members’ lands to operate, repair and improve the existing infrastructure of its permanent utility.  Current landowners in a district may feel that their district does not have the right to enter onto their lands or that the district must obtain the right to enter their lands through voluntary acquisition or through condemnation.  This creates a potential nightmare for an improvement district and its members when a landowner seeks to prevent a district from entering onto his or her land for the purpose of operating, repairing or improving the permanent utility.  If this occurs, litigation may be the only option for the district or the landowner.  This was the case in Davis v. Nye Ditch Users Improvement District, 247 Or App 266, 268 P3d 778 (2011).

In Nye Ditch, the predecessors-in-interest to the plaintiffs joined with neighboring landowners in the 1920s to dig the Nye Ditch to irrigate their lands for agriculture.  Id. at 268.  The plaintiffs Davis and Ritters each purchased property in the district in 2003 and 2006, respectively.  Id.  The plaintiffs’ properties benefitted from the Nye Ditch and it was visible from their land.  Id.  The Nye Ditch Users Improvement District was formed under Chapter 554 in 2006 and the plaintiffs’ lands were within the district.  Id. at 268–69.  The plaintiffs used the Nye Ditch and paid assessments to the district.  Id. at 269.  The district contracted with an excavation contractor to make improvements to the Nye Ditch on the Ritters’ property.  The Ritters barred the excavation crew from entering their property and filed a lawsuit challenging the district’s authority to enter onto their lands.  Id.  The trial court granted summary judgment to the district finding that the district had the right to enter the land based on “(1) the easements belonging to landowners who draw water from the ditch, (2) ORS Chapter 554, and (3) defendant’s articles of incorporation.” Id. at 270.  The plaintiffs appealed.

The Court of Appeals began its analysis by noting that the landowners drawing water from Nye Ditch, as neighbors who receive a “mutual benefit” through a “common enterprise,” hold easements to cross their neighbors’ property to access the Nye Ditch.  Id. at 270–71 (citing Foster v. Foster, 107 Or 355, 368, 213 P 895 (1923); Luckey v. Deatsman, 217 Or 628, 634, 343 P2d 723 (1959)).  The easements are appurtenant to and run with the land.  Nye Ditch, 247 Or App at 271; Luckey, 217 Or at 636–37.  The Court of Appeals further held that landowners’ easement rights included the right to access their neighbors’ property for repairs.  Id. at 271 (citing Baumbach v. Poole, 266 Or 154, 157–58 n.1, 511 P2d 1219 (1973)).  “The general rule, that a party who has a right of enjoyment, has also a right to enter and make necessary repairs, is essential to the enjoyment of the thing granted.”  Id. at 271–72 (quoting Thompson v. Uglow, 4 Or 369, 372 (1873)).

The Court of Appeals went on to explain that the Nye Ditch Users Improvement District was entitled to exercise its members’ easement rights to enter onto its members’ lands to improve or repair the Nye Ditch.  Id. at 275.  The holding was based on the statute authorizing the formation of the district, ORS Chapter 554.  In particular, the Court noted that ORS 554.110 gave the district’s board “full authority and power to . . . (1) Build, construct and complete any works and improvements . . . (3) Operate and maintain such works as are necessary, convenient and beneficial for said purposes . . . .”  Id. at 274.  The Court of Appeals found that the statute granted the district the right to enter the land of its members to improve or repair irrigation ditches by implication.

[W]here a power is conferred by an act, everything necessary to carry out that power and make it effectual and complete will be implied.  Further that which is implied in a law is as much a part of it as that which is expressed.  These long-established principles of statutory construction are universally recognized [.]

Id. at 275 (quoting Pioneer Real Estate Co. v. City of Portland, 119 Or 1, 10, 247 P2d 319 (1926)).  “The legislature granted improvement districts the authority to act on behalf of individual landowners and to exercise, on their behalf, their common-law rights of improvement and repair and access necessary for that purpose.” Id. at 275.

The decision in Nye Ditch has a number of interesting aspects.  First, it acknowledges that the landowners who band together to build a permanent utility have property rights in each other’s lands.  Second, it takes that concept a step further to allow statutorily created and governed improvement districts to exercise its members’ property rights to operate, maintain and improve its existing infrastructure.  Third, by allowing the districts to exercise its members’ property rights, the Court of Appeals appears to have bypassed the question of whether the District’s operation, maintenance and improvement of a permanent utility on the lands of its members constitutes a constitutional taking.  By doing so, it removes the possibility that the members of the district may have to pay for the permanent utility twice – once when it was built and a second time to gain access to it.  Thus, the Court of Appeals created an elegant solution to what is otherwise an intractable problem for improvement districts around the Oregon.

California Appellate Court Nullifies Council “Appeal” to Itself

I-Stock City Council Meeting RoomWoody’s Group, Inc. v. City of Newport Beach, 2015 WL 367448 (Cal. App.), involved approval by the City’s planning commission of plaintiff’s changes to its restaurant, including a covered outdoor patio, inside dancing and extended opening hours on weekends.  The restaurant was located in a “trendy marine area that includes a number of restaurants.”  City Councilor Mike Henn filed an “official request to appeal” by email to the city clerk, citing his “strong belief” that the approval was inconsistent with the character of the area and in violation of the city’s plan.  The appeal did not meet the requirements of the city code and was not accompanied by an appeal fee (which in this case would have been $4100).  At the next Council meeting, the Council heard testimony in support of a council-initiated appeal and decided to take up the matter in conjunction with a tree removal permit which was part of the same application.  At the appeal hearing, Councilor Henn presented a cogent and prepared argument and the city council reversed the grant of the application, notwithstanding the arguments of plaintiff’s counsel that the council had no authority to hear the appeal and that Henn was biased in such a way as to void the Council decision.  In its final order, the Council asserted a “longstanding policy” that allowed council members to seek review of planning commission decisions, which it had invoked on eleven previous occasions.

When plaintiff sought an administrative mandate to challenge the denial, the city responded with a cross-complaint for a preliminary injunction, which the trial court granted while denying the administrative mandate.  That court took no action to a civil rights damage claim filed in response to the preliminary injunction claim. Continue Reading

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