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Posts from March 2012.

In a continued effort to encourage all things local, the City of Portland is taking steps to impose order onto the booming business of local, urban food production by formally recognizing market and community gardens, farmers markets, and food co-ops within its zoning code. Portland is joining a handful of other cities – such as San Francisco, Seattle, Philadelphia and Kansas City, reducing zoning barriers and encouraging the growing and selling of food in urban spaces. Although these activities have been allowed on a temporary basis within existing open spaces and empty parking lots, the objective with these amendments is to make existing uses permanent, create additional opportunities for access to new sources of food while, at the same time, restricting and mitigating negative impacts.

In February, President Obama signed into law HR 3630, also known as the “Middle Class Tax Relief and Job Creation Act of 2012,” which extended unemployment benefits and payroll tax deductions. Congress stuffed the bill with several additional provisions, including one that affects local government decisions regarding the siting of wireless facilities.

The legislation expressly requires that a local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station, so long as the modification does not substantially change the physical dimension of the tower or base station. This approval must be granted regardless of provisions in the Telecommunications Act of 1996 (Section 704) or any other provision of law. An “eligible facilities request” is any modification request that involves the collocation of new transmission equipment; removal of transmission equipment; or replacement of transmission equipment.

As long as a governmental entity has an easement or fee in land, a neighboring landowner will not be able to claim ownership of that land through adverse possession. This is a well known principle in the law, however until earlier this month Washington courts supported a different conclusion. But in the recent Washington State Supreme Court decision of Kiely v. Graves, __ P.3d __ (March 2012, No. 84828-9), the Court brought Washington into the national mainstream protecting public rights from private prescriptive use.

In Campbell v. Clackamas County, __ Or.App. __ (December 2011, A139642), the court was asked to consider whether plaintiffs’ rights to develop a residential subdivision had vested under Measure 49.  Plaintiffs acquired the 62-acre tract of land in 1969 at which time the property’s zoning allowed residences to be built on one-acre parcels.  Subsequently, zoning restrictions limited the uses of the property to agriculture and forestry.  Plaintiffs obtained Measure 37 waivers and sought a vested rights determination under Measure 49 to develop a 40-lot residential subdivision. 

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