The Gaping Hole in Recreational Immunity Under the Oregon Public Use of Lands Act

Jogger at a parkThe Oregon Public Use of Lands Act, ORS 105.672 et seq., provides immunity from tort liability to private and public owners of land that is made available to the public for recreational purposes.  The purpose of the Act is to encourage both private and public landowners to open their lands to the public.  In Johnson v. Gibson, 358 Or 624 (2016), the Oregon Supreme Court answered the question posed to it by the Ninth Circuit Court of Appeals: Does the recreational immunity provided in the Public Use of Lands Act extend to employees of a landowner?  The Oregon Supreme Court found that it did not.

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The Roots of Dispute in Washington

Man cutting treeWhat are the most common sources of disputes between neighbors?  Children?  Noise?  Fences? Dogs?  Trees?  That’s the top five according to that important American sociological barometer, TV’s “Family Feud”.  Topic number five recently made it to the docket of Division I of the Washington State Court of Appeals.

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Hawai’i Federal Court Decides Summary Judgment Motions in State Land Use Reclassification Case

Bridge Aina Le’a v. Hawaii Land Use Commission, 2016 WL 797567 (D. Haw.) grew out of Defendant Commission’s decision to reclassify a parcel from urban to agriculture, an action that may be taken only by the state agency. Ultimately the Hawai’i Supreme Court invalidated this action. In this separate federal action claiming just compensation for a regulatory taking, Defendants Commission and its members moved for summary judgment.

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The New Greenways: The City of Hillsboro Adopts Recreational Marijuana Regulations

Marijuana facilityOn May 3, 2016, the City of Hillsboro adopted new land use regulations in preparation for recreational marijuana uses of the product.  The city’s new code allows marijuana production facilities only in the General Industrial (I-G) and Industrial Park (I-P) zones.  However, such production facilities are not allowed in the city’s recently adopted Industrial Sanctuary (I-S) or the light rail industrial zones.  As a practical matter, this limitation in the I-S zone may turn out to be smart planning as the city has envisioned high energy users at these locations, and marijuana production could have had adverse impacts to energy infrastructure and availability in the area.

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California Appellate Court Uphold Los Angeles Billboard Regulations

Billboard against sky background day imageLamar Central Outdoor, LLC v. City of Los Angeles, 2016 WL 911406 (Cal. App.) constituted another round between cities and billboard companies over the limits of regulation. In 2002, defendant banned most billboards in the City, except for those allowed in a certain planned development zone and those advertising goods and services sold on the premises and for noncommercial billboards.   The City also banned alterations to existing billboards.   Exceptions to the ban included billboards allowed under a development agreement, special zoning district, and to work located primarily in a public right of way (such as a bus or transit stop).   The City’s sign code rests on traffic safety and aesthetics.

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Ninth Circuit Finds Yuma May Be Liable for Discriminatory Zoning Actions

Yuma1Avenue 6E Investments, LLC v. City of Yuma, 2016 WL 1169080 (9th Cir.), involved the denial of a rezoning, notwithstanding the recommendation of approval by both the professional planning staff and the City’s Planning and Zoning Commission. Plaintiff developers brought these proceedings under both the Equal Protection Clause and the federal Fair Housing Act (FHA), alleging the denial was both intentional and also disproportionally deprived Hispanic residents of housing opportunities and perpetuated segregation. The subject denial was the first in three years and 76 rezoning applications.

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Washington Supreme Court Finds “Community Bill of Rights” Affecting, Inter Alia, Zoning to Be Outside Initiative Power

Spokane Entrepreneurial Center v. Spokane Moves to Amend the Constitution, 2016 WL 455957 (Wa.) involved the successful gathering of signatures to put a “Community Bill of Rights,” as an amendment of the Spokane Charter, to send the matter to the voters of the city. Petitioners filed a declaratory judgment challenging the validity of the proposal. The trial court found petitioners had standing to challenge the validity of the proposal and that, on the merits, the proposal exceeded the initiative power. The Washington Court of Appeals made the opposite rulings on these issues and ordered the matter to be put to a vote. The Washington Supreme Court accepted review and posed the questions to be 1) whether petitioners had standing, and 2) whether the initiative was beyond the initiative power.

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Avoiding Traps in Making or Accepting an Offer of Compromise in a Condemnation Case

The procedure for initiating and prosecuting a condemnation is set forth in Chapter 35 of the Oregon Revised Statutes. Once the condemnation lawsuit is filed, the Oregon Rules of Civil Procedure (“ORCP”) typically control. However, there are potential traps lurking in the gray areas where the condemnation statute and the ORCPs converge. A condemning authority and property owner fell into such a trap in Washington County v. Querbach, 275 Or App 897 (2015).

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Religious Organization and Village Tussle Over Meaning of RLUIPA

CemeteryRoman Catholic Diocese of Rockville Centre v. Incorporated Village of Old Westbury, 2015 WL 5178126 (EDNY) involved a lengthy battle over the siting of a religious cemetery in Defendant Village in the face of a newly adopted “Places of Worship” (POW) ordinance, challenged under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Civil Rights Act and the Equal Protection and Free Exercise clauses.  In these proceedings Plaintiff moved for summary judgment, claiming the POW Ordinance was facially unconstitutional, while Defendants moved for summary judgment to dismiss all claims.  Note, one claim not treated in this summary deals with New York’s State Environmental Quality Review Act (SEQRA), which involves New York statutory issues.

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Senate Bill 1533 – Oregon Jurisdictions May Allow Inclusionary Zoning In Narrow Circumstances

ApartmentsAs part of a four-bill package – SB 1533, SB 1573, HB 4143, and HB 4079 – the Speaker of the House, Tina Kotek used the short session to try and push housing advocates’ agenda forward, but the bills got hijacked by development interests. This post explores the so-called inclusionary zoning bill, Senate Bill 1533. Inclusionary zoning is a planning tool that requires new housing developments to offer a portion of the new units at affordable levels for purchase or rent.

Housing advocates never expected inclusionary zoning to singularly solve the affordable housing crisis, but hoped it would be one avenue to create equitable neighborhoods. The hope was to have affordable housing placed in all neighborhoods, near transit options, fresh food, and quality schools. But, at the end of the day, Oregon jurisdictions are left with little in the way of mandating inclusionary housing, except for possibly, the City of Portland.

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