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Posts from September 2014.

Jennifer Baragar, Garvey Schubert Barer

Garvey Schubert Barer is pleased to sponsor Housing Land Advocates’ Conference - Equity in Form and Function: Recent Trends in Housing Policy on November 7, 2014. Ed Sullivan and Jennifer Bragar will be featured speakers, and will be joined by other experts from across the nation. Join us for a 10th Anniversary Celebration of Housing Land Advocates’ work!

November 7, 2014, Ed Sullivan and Jennifer Bragar, will present during the Housing Land Advocates Conference on at David Evans and Associates, 2100 Southwest River Parkway, Portland, OR 97201.

See below for more details and links to conference registration, or learn more at www.housinglandadvocates.org.

Housing Land Advocates

Equity in Form and Function: Recent Trends in Housing Policy

Cosponsored by: Housing Land Advocates, Garvey Schubert Barer, and David Evans and Associates

Housing features prominently in the public discourse of 2014. The tiny house movement is gaining popularity with DIY builders, private developers are racing to complete micro-apartments, and democratically run self-help homeless communities are are seeking recognition along the West Coast. This year's Housing Land Advocates (HLA) conference continues these conversations but with a focus on the geography of equity. It asks how emerging housing forms can be used to further affordable and fair housing. It emphasizes the function of housing as a means of accessing opportunity. To this end, the conference offers an analysis of the U.S. Department of Housing and Urban Development's new regulations around affirmatively furthering fair housing and updates participants on the legal landscape of inclusionary zoning that is being tested by California Building Industry Association v. City of San Jose. HLA is bringing together national, regional and local experts to explore these concepts and issues and to consider ways to support a community vision that does not leave anyone behind.

Keynote Speaker: Marc Brenman

Teacher, author and policy expert on issues of diversity, equal opportunity employment and social justice, Mr. Brenman previously worked as the Executive Director of the Washington State Human Rights Commission, Senior Policy Advisor at the U.S. Department of Transportation, and Division Director for the Office of Civil Rights at the U.S. Department of Education.

Conference Schedule

9:00am Welcome from HLA President Jennifer Bragar

9:15am Affirmatively Furthering Fair Housing: Proposed Regulations and Actions to Consider

9:45am Inclusionary Zoning: Legal Developments

10:30am Morning Panel - Housing Affordability & Neighborhood Change

12:00pm Lunch and Keynote Speaker: Marc Brenman - Title VI Transportation Planning and Fair Housing

1:00pm Organized Networking Opportunities

1:30pm Gentrification: A Talk about N/NE Portland

2:00pm Afternoon Panel - There Goes the Neighborhood: Emerging Housing Alternatives

3:30pm Afternoon Panel - Inclusionary Zoning: Threats and Opportunities

AICP and Oregon State Bar CLE credit pending

Conference Location:

David Evans and Associates

2100 Southwest River Parkway, Portland, Oregon 97201

Who We Are:

Housing Land Advocates was formed in 2004. We are a 501(c)(3) charitable corporation, and pursue our work as an entirely volunteer-run and -operated organization. We advocate for land use policies and practices that ensure an adequate and appropriate supply of affordable housing for all Oregonians.

Online Registration

Paper Registration Form & Instructions available on Housing Land Advocates website

Visit the website: http://housinglandadvocates.org/ for updates on conference speakers and registration information.  Contact HLA at info@housinglandadvocates.org for conference sponsorship opportunities.

 

Motocyclist on country roadMartinez v. County of Ventura, 2014 WL 1372028 (Cal. App.) was a personal injury suit over an accident involving plaintiff motorcyclist who was injured when he struck an asphalt berm abutting a raised drain on a county road. The drain system used a heavy steel cover eight to ten inches off the ground with a sloped asphalt berm to channel water into the drain. Defendant County, which managed the road, responded with, among other things, a design immunity defense but brought forth no evidence of any engineering design plans. The County’s road maintenance engineer testified that he “probably” approved the design and there was no other testimony regarding design or engineering. The maintenance engineer was not a licensed engineer and there was no testimony or evidence to show any scientific of engineering analysis for the subject public work – in fact, testimony was that such works were designed “in the field,” and evolved based on practical experience rather than professional design. Plaintiff appealed a verdict favorable to Defendant County based on design immunity.

Plaintiff’s appeal was predicated on insufficient evidence to support the immunity defense. In reviewing a jury verdict, the Court looked only to whether there was substantial evidence to support the same. The Court set out the applicable law as follows:

[California public entity tort law] provides that public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventative measures. A public entity may avoid liability for a proven dangerous condition of its property by proving the affirmative defense of “design immunity.” * * *

The Court added that the purpose of design immunity was to prevent a jury from second guessing a local entity’s design or engineering judgment where reasonable people may differ. Under California case law, discretionary design immunity involves three elements:

1. Approval of a plan or design prior to construction;

2. A causal relationship between the plan or design and the accident; and

3. Substantial evidence supporting the reasonableness of the plan or design.

All three elements must be planned and proved by a defendant public entity.

In this case, the Court focused on the discretionary approval criterion as Plaintiff alleged there was no exercise of discretion involved in this case. The evidence showed no previously approved design or plan for the drainage system. Moreover, there was no approval of the project by anyone in the County system having discretionary immunity. The maintenance engineer did not have authority either by virtue of his position or by delegation.

Finally, the Court rejected the County’s contention that the use of this drainage plan in practice for 25-years constituted discretionary approval, as it had no basis in precedent and, in the Court’s view, would greatly expand this branch of immunity beyond what the legislature had authorized. In the absence of such immunity, a public entity is liable for reasonably foreseeable injuries proximately caused by a dangerous condition of its property. The immunity was designed to prevent second guessing decisions by engineers or design professionals exercising their discretion. The record fails to show that the claimed immunity has a basis in fact. Accordingly, the jury verdict was remanded to consider other issues raised by the County but not reached.

Oregon, like California, recognized discretionary immunity to prevent second guessing professional decisions. This case demonstrates the limits of such discretion.

Martinez v. County of Ventura, 2014 WL 1372028 (Cal. App.)

Does a Property's Sale Price Really Equal the Taxable Market Value?

By Cynthia M. Fraser, Esq., as published by National Real Estate Investor - nreionline.com/viewpoints, September 2014

Typically, the basic principles of a real estate appraisal for commercial and industrial properties are based on market value—the price the buyer and seller agreed upon at the point of sale. In the current economy, as we emerge from the recent recession, many real estate assessors are questioning whether the purchase prices for commercial and industrial properties reflect their true market value. In today’s competitive real estate market, many real estate investors are faced with the following question: Is the recent sale price of a property the best evidence of the property's taxable value?

Houses that look like a stock market graph going down.

Please see the complete article published in National Real Estate Investor September 9, 2014.

Cynthia M. Fraser is a partner at the law firm Garvey Schubert Barer where she specializes in property tax and condemnation litigation. Ms. Fraser is the Oregon representative of American Property Tax Counsel, the national affiliation of property tax attorneys. Ms. Fraser can be reached at cfraser@gsblaw.com.

Old railroad trackThere are three types of easements that can be created without an express agreement: an implied easement, an easement by necessity, and a prescriptive easement. It is not uncommon to see all three types of unwritten easements pled in a lawsuit seeking quiet title even though the elements for establishing each type of easement are quite different.  The following is a quick primer of the elements necessary to establish each type of easement where there is no written agreement to convey an easement.

Implied Easement.  An implied easement can only be created where property held under one ownership is divided into separately owned parts.  An easement may be implied when the circumstances existing at the time ownership is divided establishes that the grantor intended to create an easement.  The following factors are considered by the Court in deciding whether an implied easement exists: (1) whether the claimant is the conveyor or the conveyee; (2) the terms of the conveyance; (3) the consideration given for it; (4) whether the claim is made against a simultaneous conveyee; (5) the extent of necessity of the easement to the claimant; (6) whether reciprocal benefits result to the conveyor and conveyee; (7)    the manner in which the land was used prior to its conveyance; and (8) the extent to which the manner of prior use was or might have been known to the parties. Cheney v. Mueller, 259 Or 108, 118-119 (1971). The Court of Appeals recently clarified that the key time point for analyzing whether the grantor intent to provide an easement is the date ownership of the land is divided and not the date the land was partitioned or platted. Manusos v. Skeels, 263 Or App 721, 730 (2014).  The Court of Appeals also clarified that the “necessity” needed to establish an implied easement is not the “absolute necessity” required for an easement by necessity (discussed next). Id. at 732.

Easement by Necessity. An easement by necessity is created when the following three factors are present: (1) unity of title in the grantor; (2) severance of ownership; (3) actual necessity.  Unlike an implied easement, an easement by necessity is terminated once the necessity ceases to exist.  Relling v. Khorenian, 261 Or App 1, 8-9 (2014).

Prescriptive Easement.  In order to establish a prescriptive easement, the claimant must show by clear and convincing evidence that they or their predecessors, under a claim of right, used the alleged easement adversely to the rights of the respondent or their predecessors for a continuous and uninterrupted period of 10 years.  Thompson v. Scott, 270 Or 542, 546, 528 P2d 509 (1974). It is important to note that the adverse possession statute (ORS 105.620), which includes the additional requirement of an “honest belief” of ownership by the claimant, does not apply to prescriptive easements. Uhl v. Krupsky, 254 Or App 736, 740-741 (2013).  Although courts recognize that a presumption of adversity arises from open and continuous use of property, that presumption may be rebutted by showing the use was permissive or by showing the claimant’s use of an existing roadway over a neighbor’s land does not interfere with the neighbor’s use.  Woods v. Hart, 254 Or 434, 437, 458 P2d 945 (1969).

shutterstock_88865749In Parkview Terrace Development LLC v. City of Grants Pass, LUBA No. 2014-024 (July 23, 2014), LUBA considered the appeal of a City Council decision that denied the Petitioner site plan approval and a variance from street and block length standards to permit construction of 50 units of federally assisted housing for low-income individuals.

The subject property is zoned High Density Residential (R-3) and includes approximately 3.02 acres. The site is neighbored by residential townhouses, a warehouse, a mini-storage facility and a City park. In 2006, the City approved a planned unit development (PUD) for 88-units, but only 28 townhouses were constructed before the project was shelved during the recession. The Petitioner, a successor-in-interest to the original developer, wanted to build a 50-unit multi-family housing project in place of the second and third phases of the PUD. In contrast to the for sale townhouses, the new units would be rental units. Although the project was supported by staff and the Planning Commission, the City Council denied the application.

The applicant appealed because the City Council applied standards that were not “clear and objective” under the needed housing statute, ORS 197.307(4), and because the City Council erred in its findings related to variance criteria. LUBA agreed and reversed the decision. The following standards were not considered clear and objective:

• A standard that the proposal comply “with applicable elements of the Comprehensive Plan, including: Traffic Plan, Water Plan, Sewer Plan, Storm Drainage Plan, Bicycle Plan, and Park Plan,” where the City Council’s decision focused on the Traffic Plan which is an eight chapter long Master Transportation Plan. Many of the goals and objectives in the Traffic Plan are not clear and objective.

• A standard that requires “potential land use conflicts have been mitigated through specific conditions of development,” where the City Council concluded without explanation that the criterion was not satisfied. LUBA found that mitigation of “potential land use conflicts” is not clear and objective.

• A standard requiring that “adequate basic urban services are available, or can be made available by the applicant as part of a proposed development or are scheduled by the City Capital Improvement Plan.” The terms “adequate,” “basic urban services” and “available” are not explained in the Code, and without some explanation those terms are not clear and objective.

• A standard that the “provision of public facilities and services to the site will not cause service delivery shortages to existing development” was not clear and objective because the Code did not provide guidance regarding the scope of “public facilities and services” or how to go to determine if the proposal will cause service delivery shortages to existing development or what qualifies as a shortage.

• A standard regarding mitigation for special design consideration related to existing adjacent development was not clear and objective because the requirement to “mitigate” and the methods of suggested mitigation (e.g., landscaping, additional setbacks, and screening) were not clear and objective.

• A standard requiring that “traffic conflicts and hazards are minimized on-site and off-site” as provided in an Article of the Code was not clear and objective because the Council’s conclusion that the criterion was not satisfied did not explain minimization to on-site and off-site conflicts and hazards, and the Codes reference to a 32-page Article of the Code was too vague.

• A standard that requires “there are adequate provisions for maintenance of open space and other common areas” was not clear and objective, where the City engaged in a subjective analysis of whether the open space and common areas were “adequate.”

In addition to the failure of the City’s standards to meet the clear and objective requirement, the Council’s denial of a variance application was either similarly tainted, or impacts of a grant of the variance could have been mitigated through conditions.

Not only did LUBA reverse the City’s decision but required that the City approve the project in accordance with the Planning Commission’s decision and associated conditions. Stay tuned! This is the rare case where LUBA may consider a grant of attorney fees because the City Council’s findings were made in complete disregard to the Petitioner’s complaints that the standards were not clear and objective.

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