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Posts from September 2012.

In May 2012, I blogged that the Hospitality Industry is on the road to recovery and Metro, Portland’s regional governing body, was once again considering an Oregon Convention Center (OCC) hotel. On September 13, 2012, Metro approved a proposal by local developers to construct a Hyatt Regency Hotel. The full development team consists of Mortenson Development, Mortenson Construction, Hyatt Hotels Corporation, ESG Architects, Ankrom Moisan Architects, Piper Jaffray & Co., Jones Lang LaSalle Hotels and Star Terra LLC/Schlesinger Companies.

The Mortenson team proposed four development options, two options for the StarTerra, LLC property (directly north of the OCC) and two options for the PDC-owned site (directly east of the OCC). For each site, Mortenson proposed two different development programs achieving approximately 600 rooms. The development program options include: 1) a 600-room Hyatt Regency or 2) a combination 420+/-room Hyatt Regency and 181-room Hyatt Place. Metro favored the Mortenson team because this team has extensive hotel development and financing experience. Further, Metro recognized that Hyatt currently does not have a strong presence in the Portland market and a Hyatt Regency hotel could serve national convention clients at the convention center as well as introduce new corporate Hyatt-based group business in Portland.

Mark Twain’s famous quote: "Whiskey is for drinking; water is for fighting over,” continues to resonate today. In the American West, different water regimes have prompted lawsuits, mayhem and confusion. In the land use planning and development arena, conflicts and complications over water availability and water quality have reached a crescendo. Recently however, Oregon began to move toward a comprehensive approach of water planning, including modest moves to integrate water resource planning and regulation with its land use regime.

On June 22nd of this year, the Oregon Departments of Water Resources, Environmental Quality, Fish and Wildlife, and Agriculture released a draft of Oregon’s Integrated Water Resources Strategy, which the Oregon Water Resources Commission adopted on August 3rd. This document attempts to bring together public agencies whose views, regulatory priorities and constituencies concerning water are so diverse that they may be said to come from different planets. Support of the current “prior appropriation” system of allocating and regulating water based on the time of application largely binds the agricultural community together, while pressure from environmentalists and water quality regulatory agencies motivates them to push for mandatory allocation of sufficient clean water to accommodate the needs for humans and other species. While much of Western Oregon has sufficient rainfall and snowmelt to meet water demands most years, it is not always the case and it is certainly not so for the generally more arid regions of Eastern Oregon. Another way of understanding the water dilemma is to acknowledge that though there is a lot of water in western Oregon, that water supply is not stored so that there is not the right amount of water in the right place when it is needed most, namely hot summer months. Moreover, the struggle for sufficient water in Eastern Oregon is being replicated in the wetter parts of the state, as overall water demands increase.

Have you ever seen the iconic advertisements on the side of the Hotel Figueroa in Los Angeles? I bet you have - if not on a commute opportunity through the metropolis, then in a movie. Or, perhaps your business is similar to the Pier House 60, Clearwater Beach Marina Hotel where a condition of approval required compliance with both the public art requirements for the development and the local sign code. If you are interested in how to avoid an eight-armed strangle on your business’ commercial speech, read on for guidance about how to avoid problems with local sign regulations.

The Washington Court of Appeals in Catsiff v. McCarty, 167 Wash App 698, 274 P3d 1063 (2012), issued a broad decision regulating commercial speech on signage. If you own a business that is on the lookout for name recognition and the perfect location for the right type of sign, you should consider this case of the Inland Octopus toy store. Catsiff, the owner of a toy store in Walla Walla, decided to paint a wall sign depicting an octopus hiding behind a rainbow over the rear entrance of the store. He did not obtain a permit. Later that year, he painted on the store front an octopus hiding behind several buildings with a rainbow over the buildings. Again, he installed the front entrance sign without obtaining a permit. The City of Walla Walla took code enforcement action against Catsiff for violating the sign code. In response, Catsiff admitted to the facts constituting the violation – exceeding the height limitations and not obtaining a permit to ensure compliance with the downtown design standards, but took umbrage to the overall sign code and countered that the regulations were unconstitutional.

The court reviewed Catsiff’s free speech rights under the state and federal constitutions. The court concluded that the two octopus signs were commercial speech and were placed as an expression related solely to the economic interests of the speaker and audience because their design matched the store’s logo and Catsiff intended to invite people into his store to purchase toys through the advertisement. The court found that the city reasonably exercised its police powers through the adoption of its sign ordinance because such regulation of commercial speech, where the city was concerned about the obstruction of views and distraction to motorists legitimately call for regulation. The court found that the city’s size and design standards were content neutral and that all downtown businesses were subject to the same set of standards.

Similarly, Oregon’s Supreme Court upholds proper time, place and manner regulation of signs as discussed in Outdoor Media Dimensions, Inc. v. Department of Transportation, 340 Or 275, 132 P3d 5 (2006). In that case Outdoor Media Dimensions, Inc. had displayed several outdoor advertising signs without a permit in violation of the Oregon Motorist Information Act (1999) (“OMIA”). The media company, like Catsiff, challenged the citations on several state and federal constitutional grounds. The court concluded that size limits on signs are permissible time, place, and manner restrictions because such regulations are unrelated to the substance of any particular message. However, the court did rule that the OMIA impermissibly required a fee for off-premises signs while exempting on-premises signs from the fee requirement. The court ruled that the on-premises/off-premises distinction is not content neutral because that distinction allows a sign owner without a permit to display one narrowly defined category of message - a message related to activity conducted on the premises where the sign is located - but not to display any message respecting any other subject. Further, the court refused to accept that the state’s reliance on legitimate safety and aesthetic goals of the OMIA justified a prohibition of speech based on content. Therefore, the court concluded that the fee structure based on the type of expression is an impermissible restriction on the subject of expression under the state constitution.

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