Tenants Do Not Have Standing to Sue for Prescriptive Easements

Tualatin_Oregon_shopping_center7455 Incorporated v. Tuala Northwest, LLC, 2015 WL 7009180 (Or. Ct. App. 2015)

On an issue of first impression in Oregon, the Court of Appeals recently decided that a tenant lacks standing to bring a lawsuit to establish a prescriptive easement. The tenant in this case operated a business under the name “Jiggles” in Tualatin. The neighboring property was a shopping center featuring a K-Mart store that was owned or managed by the defendants. The suit was brought after the defendants blocked access to plaintiff’s establishment from the neighboring shopping center by installing a fence and locked gate. Continue Reading

A Ghost from the Past: How a Congressional Miscue 25 Years Ago Could Impact Defense of EPA’s Clean Power Plan

CO2Last month, President Obama’s EPA finalized the agency’s Clean Power Plan, the regulatory initiative to establish first-time restrictions on greenhouse gas (carbon dioxide – CO2) emissions from existing fossil-fueled power plants. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64662 (October 23, 2015). As expected, a number of court challenges were filed the same day (although EPA Administrator Gina McCarthy signed the Clean Power Plan on August 3rd, Federal Register publication on October 23rd was the trigger for seeking judicial review). Continue Reading

It Ain’t Easy Being Simple

Urban growth OregonFollowing several LUBA and appellate court decisions that invalidated urban growth boundary (UGB) amendments in McMinnville and Woodburn (twice), the 2013 Oregon legislature enacted HB 2254, legislation that purported to “simplify” the UGB amendment process by creating an alternate path for local governments outside the Portland Metro Area. However, LCDC’s efforts at implementing that legislation to date make manifest the difference between aspiring to simplicity and achieving it. Continue Reading

Washington Federal Court Denies Stipulated Judgment in Cell Tower Case in Face of Neighbor Objections

Cell phone towerT-Mobile West LLC v City of Medina, U.S.D.C. No. C14-1455-RSL (W.D. Wash., August 25, 2015) involved Plaintiff’s federal court challenge under the Federal Telecommunications Act (FTA) to the denial of its cell tower application.  After the case was filed but before trial, the original parties (i.e., the applicant and the City) proposed a stipulated judgment that would allow the tower on the proposed site with some modifications.  Intervening neighbors objected to the same.

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Ohio Supreme Court Finds Comprehensive Plan Requirement Fulfilled In Local Zoning Ordinance

Granger-Township-weather-station_8Editor’s note: Edward J. Sullivan and Carrie A. Richter were cited by the Ohio Supreme Court.

Apple Group, Ltd. v. Granger Township Board of Zoning Appeals, 2015 WL 3774084 (Ohio) arose out of a dispute over the interpretation of statutory language that Ohio townships were required to exercise their zoning powers “in accordance with a comprehensive plan,” and whether that requirement necessitated a document separate from the local zoning regulations.  Continue Reading

Illinois Federal Court Grants and Denies Motions to Dismiss in Rluipa Case

coexist_orig   Flickr   Photo SharingChurch of Our Lord and Savior Jesus Christ v. City of Markham, No. 15 C 4071 (N. D., Ill. August 19, 2015) was a suit by Plaintiff church against Defendants City and members of its governing body over the denial of a discretionary permit to allow a church use. A state court proceeding challenging that denial was dismissed without prejudice, but this federal action involved both an appeal of the denial, various complaints about open meetings violations, and violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and its state law analogue. This decision involved Defendants’ Motions to Dismiss all claims. Continue Reading

Land Use Code Complaints Generally Subject to Public Records Law Says Colorado Appellate Court

Shook v. Pitkin County Board of County Commissioners, 2015 WL 3776876 (Colo. App., June 18, 2015), involved a complaint of a potential land use code violation on Plaintiff’s property. Following an investigation, a notice of violation was directed at Plaintiff, who obtained a permit. No further action was taken on the violation; however, Plaintiff sought all public records concerning the complaint. Defendant supplied some of the requested records, but did not include the name and address of the complainant and certain handwritten notes of the inspector who processed the complaint. Plaintiff filed a declaratory judgment action to obtain that information under the Colorado Open Records Act (CORA), but the trial court upheld the denial of disclosure under an exception in that Act. Plaintiff appealed, seeking the disclosure and statutory attorney fees and costs.  Continue Reading

The Court of Appeals Identifies Limits to the Deference Given to Local Government Interpretations

For the past nine years, Thornburgh Resort Company, LLC and its successor Loyal Land, LLC have attempted to site a destination resort on 2,000 acres in Deschutes County. Ms. Annunziata Gould has continually challenged this effort. The latest challenge, Gould v. Deschutes County (Gould X), may have been the last, for the Oregon Court of Appeals latest decision identified some significant boundaries to the deference that it and LUBA must give to local government interpretations of their own plan and land use regulations. A little background is necessary.

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You’re Invited: HLA’s 2015 Conference – “At the Intersection of Housing & Health”

housing land advocatesAs the current President of Housing Land Advocates, I am pleased to announce HLA’s 2015 Conference – “At the Intersection of Housing and Health.”  Garvey Schubert Barer is a proud sponsor of the event and its contribution last year resulted in scholarships for more than 20 law and planning students interested in advocating for smart land use planning to build equitable neighborhoods.

Steven Fischbach, Community Lawyer at Rhode Island Legal Services will be the keynote speaker.

Panelists and speakers include:

Rachel Banks, Program Director, Chronic Health Prevention Program, Multnomah County Health Department
Dr. Vivek Shandas, Portland State University, Toulan School or Urban Studies and Planning, Institute for Sustainable Solutions
Justin Buri, Executive Director, Community Alliance of Tenants
Dr. Lisa Bates, Portland State University, Toulan School of Urban Studies & Planning
Jim Long, Affordable Housing Manager, City of Bend, OR
Erin Skaar, Executive Director, Community Action Resource Enterprises (CARE), Inc., Tillamook County, OR
Jes Larson, Director, Welcome Home Coalition

Please find the registration details here.

We hope you can join us this year for a stimulating conversation about housing and public health.


The Sharing Economy Meets the Washington Condominium Act

Seattle condosThe Supreme Court of the State of Washington recently decided a case in which the advancing forces of the sharing economy intersect with the real estate world, in Fillmore LLLP the Unit Owners Association of Centre Pointe Condominium, Washington Supreme Court No. 0879-6 (September 3, 2015). In this case, the court analyzed whether a homeowners’ association condominium declaration amendment required a 67% percent vote, or if the higher threshold of 90% percent of affirmative votes was required to pass a resolution restricting the right of a condominium owner to rent the condominium. Continue Reading