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Posts from June 2012.

The Governor’s Ten Year Energy Action Plan Task Force released its Draft Energy Plan on June 5, 2012. The plan outlines the actions and initiatives of that the State of Oregon can take in the next 10 years to:

• Reduce the state’s dependence on carbon-intensive fuels and foreign oil

• Develop home-grown renewable energy resources

• Mitigate greenhouse gas emissions

• Improve energy efficiency and create rewarding local jobs

• Boost Oregon’s economy through investment and innovation

The siting portion of the plan analyzes which projects should be reviewed by local or state government, as well as the role other governmental agencies and entities should play in the siting process. The recommendations include the creation of an interdisciplinary team of agencies led by a Project Officer to review proposed Energy Facility Siting Council (EFSC) projects; and a similar, but separate coordination process for projects under federal and state review

The Washington Supreme Court went out of its way to protect oppressed Washington homeowners, while creating greater uncertainty for foreclosure purchasers, in their recent decision Albice v. Dickinson (Cause No. 85260-0). A homeowner had borrowed $115,500 with a loan secured by her home, which was appraised in 2007 at $950,000. The homeowner fell behind in payments, and a Trustee’s Sale was set for September 8, 2006. Before the sale date, the homeowner and lender entered into a Forbearance Agreement, and the Trustee continued the sale date every time a payment under the Forbearance Agreement was made.

Meanwhile, the homeowner made all required payments under the Forbearance Agreement, however each of the payments was late. The lender never objected to the late payment, until the last required payment, which was sent February 2, 2007. The lender returned that payment to the homeowner on February 10, 2007, with a message that it was rejected because it was late. Even though the Forbearance Agreement provided for a 10 day notice before default, no notice was given, and the house was auctioned at a Trustee’s Sale February 16, 2007, exactly 161 days after the original Trustee’s Sale date. (RCW 61.24.040(6) only allows continuances of sale dates for up to 120 days.) Mr. Dickinson was one of only two bidders to show up for the sale after the many sale continuances, and was the winning bidder with a bid of $130,000.

Starting in 2009, in the middle of the recession and a depressed real estate market, Habitat for Humanity, the nonprofit housing group, was betting and investing big in Portland's low-income east side. Habitat was buying vacant land on the cheap, shopping from banks in repossession and at foreclosure sales to squirrel away land for future housing projects. Now, three years later, the first 22 homes in the largest Habitat project in Oregon history — a 65-unit subdivision left partly built by a private developer who abandoned it when the market crashed — are rising on Portland’s east side. Habitat, meanwhile, has become the 10th-largest home builder in the Portland metropolitan area by housing volume, and even more dominant on the lower-income east side. Moreover, Habit purchased 150 vacant lots for its "land bank," which will keep the group busy for five years or more, even as it has increased its home-building output by 50 percent, to 30 homes a year from 20.

Last night Portland area industry professionals and representatives from ODOT, Metro, LCDC, Washington County, and several other organizations, joined the Euclid Society at the GSB Portland offices for a discussion about the recent amendments to Oregon’s Transportation Planning Rule (TPR).

Ed Sullivan opened the meeting with a history where, beginning in 1974, Oregon instituted Statewide Planning Goal 12 to provide and encourage a safe, convenient and economic transportation system. In time however, more detailed requirements were necessary and the TPR was born in 1991. At bottom the TPR requires:

• ODOT and Metropolitan Planning Organizations (“MPOs”) which are designated by the Governor to deal with transportation needs within a given region to adopt binding Transportation System Plans (“TSPs”)

• Coordination between transportation plans and comprehensive plans and among state and local agencies involved with transportation for project development

• Safeguards to assure that transportation needs are considered in comprehensive plans, as well as plan amendments and zone changes, the latter through the most litigated provision, OAR 660-012-0060, Plan and Land Use Regulation Amendments.

Oregon is unique in its view that transportation planning is integral to all land use decisions and its TPR codifies the requirements to look at each decision’s impact on local and regional transportation systems.

William Kabeiseman then took the floor, to explain the recent modifications to the TPR. These changes include the addition of an option for local governments with urban areas to adopt multi-modal mixed use areas to allow mixed use development; and a rural fix that will allow economic development projects that may have impacts on state highways to avoid a full blown TPR analysis. This portion of the presentation highlighted the refinement of the “two Oregons” where state law recognizes that different regions face different challenges when it comes to transportation planning.

How Do We Move Forward? An Update on the New Amendments to the Transportation Planning Rule, is the topic that will be discussed at tomorrow's meeting.

The Euclid Society is an affiliation of land use planners, developers and consultants whose purpose is to share experiences and ideas relating to recent events and current trends in planning. To find out more about the society or to get involved e-mail: landuse@gsblaw.com

For more information about other upcoming Garvey Schubert Barer events, click here.

An Ed Sullivan Case Summary:

Farmers for Fairness v. Kent County Levy Court, 2012 WL 295060 (Del. Ch.) arose over respondent’s adoption of a new county comprehensive plan which, Petitioners claimed, adversely affected the use and value of their property. Petitioners are landowners and their representatives who own land outside urban growth areas. Respondent alleged the plan had no immediate effect while Petitioners alleged that the effect was immediate, notwithstanding the lack of change to the zoning regulations and maps. Delaware law requires the adoption and periodic review of a comprehensive plan. The County’s motion to dismiss was based on ripeness grounds and its consideration preceded that of the merits of Petitioners’ claims.

Petitioners claimed that Delaware statutory law prohibited development in conflict with the comprehensive plan and the impact of the plan adoption effected zone changes from a general maximum density of one dwelling per acre to one dwelling per four acres. Respondent contended the case was not ripe until the County adopted new regulations and maps

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