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Posts from April 2015.

Kerns v. Pendleton marks a historic step for Oregon and the nation.  In 1979, the Oregon Legislature created the Land Use Board of Appeals (LUBA) as an administrative body, which had “exclusive jurisdiction” over most land use decisions of local governments.  Until this time, Oregon and other states gave that role to local trial courts.  However, with the passage of a coordinated state system of land use planning and regulation in 1973, courts were less familiar with the bevy of rules and statutes that were now applicable to local planning.  Moreover, those courts were also faced with giving priority to speedy trials in criminal cases, particularly for defendants who were incarcerated.  Additionally, the development community pressed for a system that was speedy and more certain.

LUBA’s creation was a four-year trial of a new system in which persons dissatisfied by a local government (and sometimes a state agency) land use decision was required to appeal that decision in 30 days, unlike the 60 days that had been the previous timeline.  Unlike trial courts, LUBA had time limits to decide appeals and its decisions were appealable to the Oregon Court of Appeals.  The original members of the Board were Michael Reynolds, a former Assistant Attorney General and previous counsel to the Land Conservation and Development Commission (LCDC), John Bagg, a former local government attorney, and William Cox, who had represented development interests in private practice.

Carter Kerns was one of three neighbors (together “Petitioners”) who appealed Pendleton’s decision to annex and rezone a 22-lot subdivision on 12.36 acres on several grounds: violation of the statewide planning goals, unlawful procedures and violation of an administrative rule adopted by LCDC that limited annexations of land prior to acknowledgment of the City’s plan (i.e. certification that its plan and land use regulations complied with the statewide planning goals).

Changing EnvironmentThis month saw the latest chapter in a lengthy case about climate change and Oregon’s response to it.  The case, Cherniak v. State of Oregon, began in 2011, when two Eugene area teens challenged the state’s response to climate change, arguing that the atmosphere was part of the public trust and that the state had failed in its obligation to protect that resource for future generations.

The case was initially dismissed by the Lane County Circuit Court in 2012 for lack of subject matter jurisdiction.  In 2014, the Oregon Court of Appeals remanded the case, finding that the court did have authority to consider the matter.  On Tuesday, April 7, 2015, the state of Oregon found itself back in the Lane County Circuit Court arguing that the atmosphere is not subject to the public trust doctrine.  The other critical issue involves the remedy if the atmosphere is found to be subject to the public trust doctrine.  Essentially, what authority does a state circuit court have to dictate state policy and determine the appropriate level of emissions?

The court indicated it would likely rule on the matter within two months, but that is unlikely to be the end of the matter.  Stay tuned for future developments on climate change in Oregon.

iStock Country RoadThe law recognizes that under certain circumstances, continued unauthorized crossing of another’s land for a long time can lead to the right to do so indefinitely, notwithstanding that there is no agreement from the landowner.  The right so gained is called a prescriptive easement.  When the law allows one landowner to lose property rights in favor of another, without compensation, disputes often occur.  No surprise.  If it were my land, I’d be upset, too.

The Oregon Court of Appeals, in Wels v. Hippe, 269 Or App 785, 787 (2015), recently dealt with such a dispute, and provided the litigants and practitioners of the law with an in-depth analysis of one element of a prescriptive easement case – “adversity”.

In order to obtain a prescriptive easement to cross over or use the property of another under Oregon (as well as Washington) law, a plaintiff claiming a prescriptive easement is required to show, “by clear and convincing evidence, that his use (or use by former owners of his property) of the road on defendants’ property was ‘open and notorious,’ ‘adverse to the rights of defendants,’ and ‘continuous and uninterrupted’ for 10 years.”  Id, at 787.

croppedIn September 2014, I reported on the Parkview Terrace Development case, where the developer applied to transform Phases II and III of a planned unit development (PUD) from for sale townhouses to multi-family rentals and the City denied the application.  LUBA reversed the City’s denial of an affordable housing development and ordered the City to grant the developer approval.  In the Parkview Terrace blog post, I suggested that the case was ripe for an award of attorneys’ fees and LUBA recently issued an order on the fee motion.

The developer sought to recover over $39,000 in attorneys’ fees and had originally sought a mandatory fee award against the City of Grants Pass under ORS 197.835(10)(b) because LUBA reversed the City’s decision.  However, LUBA’s order describes that the developer subsequently withdrew its motion for attorneys’ fees against the City.  I can only surmise that the developer, a rental housing provider, calculated that its long-term working relationship with the City would not be bolstered by pursuit of these fees.

Thus, LUBA was left to determine whether the project neighbors should be on the hook for the developer’s fees.  The standard of review for attorneys’ fee motions in land use matters is whether LUBA finds that a party presented a position without probable cause to believe the position was well-founded in law or on factually supported information.  In these circumstances, “without probable cause” is where no reasonable lawyer would conclude that any of the legal points asserted on appeal possessed legal merit.  In order to avoid attorneys’ fees in land use cases, a party must present at least one argument on appeal that satisfies the probable cause standard.

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