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

Content-Neutrality Challenges to a County’s Sign Code Becomes About Everything Else

Blank White Sign in City StreetAfter the U.S. Supreme Court held that the government cannot single out one form of noncommercial speech over another, comes a series of rulings that similarly should have dealt with the questions of content neutrality, a primary tenet of free speech under the Oregon and federal constitutions. Yet, in the Icon Groupe. LLC v. Washington County series of cases, strategic lawyering seems to have put the free speech issues in the back seat.

In 2010, Icon Groupe, LLC filed applications to locate 17 freestanding signs that exceeded the otherwise applicable size and height restrictions, claiming an exemption from these restrictions on the basis that they were “safety signs,” described as:

“[d]anger signs, trespassing signs, warning signs, traffic signs, memorial plaques, signs of historical interest, holiday signs, public and service information signs such as rest rooms, mailbox identification, [and] newspaper container identification”

Some of the signs cautioned drivers on safety matters, while others exhorted them to have a “safe Memorial Day.”

The county did not contest that the signs qualified as “safety signs.” Rather, it denied the applications stating that the exemption was a content-based regulation that violated the Oregon Constitution that must be severed from the remainder of the code, leaving the remaining dimensional requirements, which if found, were violated. Icon appealed the denials but no final action was taken within 120 days, whereupon Icon asked the circuit court to compel the county to approve all the applications under a state statute. The court granted relief and denied a stay pending an appeal, noting that the 120-day statute required it to grant relief unless the permit would violate a substantive provision of the county’s plan or code and holding that statute did not authorize the court to consider constitutional questions. The county appealed that decision to the Oregon Court of Appeals but authorized a number of the requested sign permits.

While the county’s challenge to the mandamus decision was pending, Icon filed a civil rights action in federal district court, claiming that denial of the sign permit applications violated Icon’s constitutional rights to free speech, due process and equal protection under the U.S. Constitution.

Although the court agreed that the county did not present evidence that regulating signage advances a government interest, the court also found that Icon did not contest the constitutionality of the safety sign exception, effectively arguing that the exemption was constitutional.

The court then evaluated Defendants’ time, place and manner sign regulations, finding them related to valid public concerns, i.e., traffic safety and aesthetics, the code narrowly tailored in its dimensional requirements and allowing for alternative means of communication. Rather than arguing that the county’s sign regulations, including the exception were unconstitutional, Icon argued that the county’s denial of the applications was (1) premised on an impermissible purpose; (2) lacked consideration of less restrictive alternatives; (3) was arbitrary; and (4) a pretextual regulation of speech.

The impermissible purpose was the use of the asserted unconstitutionality of the exemption. However, the reasons given for the denial were the failure to comply with Code dimensional requirements. The court found that Icon did not have a vested or otherwise unfettered right to approval of its applications and content-neutral time, place and manner restrictions on free speech are constitutionally permitted.

As to a less restrictive alternative of approving the applications and dealing with the constitutionality of the exemption later, the court again noted that the denial was based on failure to comply with the narrowly tailored dimensional requirements of the code and the fact there might be imagined a less intrusive on free speech is not unconstitutional. The court also rejected the failure to act on its local appeal in a timely way as a due process violation, as that failure allowed for its mandamus remedy to be pursued successfully. The dimensional requirements was constitutional.

As to an allegedly unwritten policy allowing the building official to operate without standards in dealing with sign matters, allowing the use of a content-based restriction, it was clear that the official did not exercise arbitrary judgment over application of the dimensional standards, which was the basis for denial.

The final allegation was that the denial was pretextual and was really based on hostility to messages that Icon might communicate in the future. While these considerations were present, the dimensional reasons for the denial were valid time, place and manner restrictions that were narrowly tailored to accommodate valid public interests, toallow for free speech and left open other adequate channels for free speech. The court thus granted summary judgment to the county.

As a postscript, it should be noted that the Oregon Court of Appeals affirmed the judgment of the circuit court in ordering mandamus relief, confining itself to the issue of whether a code violation occurred and not considering the constitutionality of the exemption. A Petition for Reconsideration is now pending and a Petition for Review may well be filed in the Oregon Supreme Court.

This is a case that contains many free speech strategic issues under the federal and Oregon constitutions. As a civil rights action, the costs to the county would have been immense had it not prevailed. Perhaps, one can view these cases as an immense chess game in which free speech was an onlooker.

Ed Sullivan Expands His Library of Oregon Land Use Analysis

iStock_000072430455_LargeWe are pleased to share Ed Sullivan’s latest publication – “Urbanization in Oregon: Goal 14 and the Urban Growth Boundary” that was just published in The Urban Lawyer. In this article, Oregon’s urbanization process is examined through the lens of Goal 14 – the state’s principal method of controlling urban growth through implementation of the Urban Growth Boundary (“UGB”). When you fly overhead or take those quick trips to the Gorge, it is that stark line at the urban edge that divides city life from nature, farm and open space that catches our eye. Not many other states have successfully limited sprawl and given way to urban escape as well as we have in Oregon.

This paper provides a historical perspective about Oregon’s planning system in the context of the national movement for planning and moves through a step-by-step analysis of the evolution of Goal 14 and its amendments in 1988 and 2000. The article discusses the important factors that influence urbanization and application of Oregon’s statutes and rules, including population forecasting and the urban reserves process. Next, the article covers the interplay of Goal 14 with other Oregon Statewide Planning Goals and administrative rules. Most importantly for planners, the article examines the Goal 14 case law development over the 40 years since its inception. The article explores the “need” cases, locational factors, and need v. location. In Ed Sullivan’s artful manner, he manages to summarize the McMinnville case (1000 Friends of Oregon v. LCDC) in two paragraphs!

Of course the article would not be complete without the final discussion of the Barkers Five, LLC v. LCDC, 323 decision and the Grand Bargain. The stakes are high for property holders on the edge of the UGB and every one of them is vying to be next in line for inclusion within the boundary. We are left with the question of whether a legislative fix will be required in every circumstance – politicizing the planning process to an even greater extent than already exists.


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

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

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

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

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

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

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

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

California Supreme Court Upholds City Inclusionary Zoning Requirements Against Constitutional Attacks

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

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