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Posts from September 2015.

housing land advocatesAs the current President of Housing Land Advocates, I am pleased to announce HLA’s 2015 Conference – “At the Intersection of Housing and Health.”  Garvey Schubert Barer is a proud sponsor of the event and its contribution last year resulted in scholarships for more than 20 law and planning students interested in advocating for smart land use planning to build equitable neighborhoods.

Steven Fischbach, Community Lawyer at Rhode Island Legal Services will be the keynote speaker.

Panelists and speakers include:

Rachel Banks, Program Director, Chronic Health Prevention Program, Multnomah County Health Department

Dr. Vivek Shandas, Portland State University, Toulan School or Urban Studies and Planning, Institute for Sustainable Solutions

Justin Buri, Executive Director, Community Alliance of Tenants

Dr. Lisa Bates, Portland State University, Toulan School of Urban Studies & Planning

Jim Long, Affordable Housing Manager, City of Bend, OR

Erin Skaar, Executive Director, Community Action Resource Enterprises (CARE), Inc., Tillamook County, OR

Jes Larson, Director, Welcome Home Coalition

Please find the registration details here.

We hope you can join us this year for a stimulating conversation about housing and public health.

 

Seattle condosThe Supreme Court of the State of Washington recently decided a case in which the advancing forces of the sharing economy intersect with the real estate world, in Fillmore LLLP the Unit Owners Association of Centre Pointe Condominium, Washington Supreme Court No. 0879-6 (September 3, 2015). In this case, the court analyzed whether a homeowners’ association condominium declaration amendment required a 67% percent vote, or if the higher threshold of 90% percent of affirmative votes was required to pass a resolution restricting the right of a condominium owner to rent the condominium.

Blank White Sign in City StreetAfter the U.S. Supreme Court held that the government cannot single out one form of noncommercial speech over another, comes a series of rulings that similarly should have dealt with the questions of content neutrality, a primary tenet of free speech under the Oregon and federal constitutions. Yet, in the Icon Groupe. LLC v. Washington County series of cases, strategic lawyering seems to have put the free speech issues in the back seat.

In 2010, Icon Groupe, LLC filed applications to locate 17 freestanding signs that exceeded the otherwise applicable size and height restrictions, claiming an exemption from these restrictions on the basis that they were “safety signs,” described as:

“[d]anger signs, trespassing signs, warning signs, traffic signs, memorial plaques, signs of historical interest, holiday signs, public and service information signs such as rest rooms, mailbox identification, [and] newspaper container identification”

Some of the signs cautioned drivers on safety matters, while others exhorted them to have a “safe Memorial Day.”

The county did not contest that the signs qualified as “safety signs.” Rather, it denied the applications stating that the exemption was a content-based regulation that violated the Oregon Constitution that must be severed from the remainder of the code, leaving the remaining dimensional requirements, which if found, were violated. Icon appealed the denials but no final action was taken within 120 days, whereupon Icon asked the circuit court to compel the county to approve all the applications under a state statute. The court granted relief and denied a stay pending an appeal, noting that the 120-day statute required it to grant relief unless the permit would violate a substantive provision of the county’s plan or code and holding that statute did not authorize the court to consider constitutional questions. The county appealed that decision to the Oregon Court of Appeals but authorized a number of the requested sign permits.

While the county’s challenge to the mandamus decision was pending, Icon filed a civil rights action in federal district court, claiming that denial of the sign permit applications violated Icon’s constitutional rights to free speech, due process and equal protection under the U.S. Constitution.

Although the court agreed that the county did not present evidence that regulating signage advances a government interest, the court also found that Icon did not contest the constitutionality of the safety sign exception, effectively arguing that the exemption was constitutional.

The court then evaluated Defendants’ time, place and manner sign regulations, finding them related to valid public concerns, i.e., traffic safety and aesthetics, the code narrowly tailored in its dimensional requirements and allowing for alternative means of communication. Rather than arguing that the county’s sign regulations, including the exception were unconstitutional, Icon argued that the county’s denial of the applications was (1) premised on an impermissible purpose; (2) lacked consideration of less restrictive alternatives; (3) was arbitrary; and (4) a pretextual regulation of speech.

The impermissible purpose was the use of the asserted unconstitutionality of the exemption. However, the reasons given for the denial were the failure to comply with Code dimensional requirements. The court found that Icon did not have a vested or otherwise unfettered right to approval of its applications and content-neutral time, place and manner restrictions on free speech are constitutionally permitted.

As to a less restrictive alternative of approving the applications and dealing with the constitutionality of the exemption later, the court again noted that the denial was based on failure to comply with the narrowly tailored dimensional requirements of the code and the fact there might be imagined a less intrusive on free speech is not unconstitutional. The court also rejected the failure to act on its local appeal in a timely way as a due process violation, as that failure allowed for its mandamus remedy to be pursued successfully. The dimensional requirements was constitutional.

As to an allegedly unwritten policy allowing the building official to operate without standards in dealing with sign matters, allowing the use of a content-based restriction, it was clear that the official did not exercise arbitrary judgment over application of the dimensional standards, which was the basis for denial.

The final allegation was that the denial was pretextual and was really based on hostility to messages that Icon might communicate in the future. While these considerations were present, the dimensional reasons for the denial were valid time, place and manner restrictions that were narrowly tailored to accommodate valid public interests, toallow for free speech and left open other adequate channels for free speech. The court thus granted summary judgment to the county.

As a postscript, it should be noted that the Oregon Court of Appeals affirmed the judgment of the circuit court in ordering mandamus relief, confining itself to the issue of whether a code violation occurred and not considering the constitutionality of the exemption. A Petition for Reconsideration is now pending and a Petition for Review may well be filed in the Oregon Supreme Court.

This is a case that contains many free speech strategic issues under the federal and Oregon constitutions. As a civil rights action, the costs to the county would have been immense had it not prevailed. Perhaps, one can view these cases as an immense chess game in which free speech was an onlooker.

iStock_000072430455_LargeWe are pleased to share Ed Sullivan’s latest publication – “Urbanization in Oregon: Goal 14 and the Urban Growth Boundary” that was just published in The Urban Lawyer. In this article, Oregon’s urbanization process is examined through the lens of Goal 14 – the state’s principal method of controlling urban growth through implementation of the Urban Growth Boundary (“UGB”). When you fly overhead or take those quick trips to the Gorge, it is that stark line at the urban edge that divides city life from nature, farm and open space that catches our eye. Not many other states have successfully limited sprawl and given way to urban escape as well as we have in Oregon.

This paper provides a historical perspective about Oregon’s planning system in the context of the national movement for planning and moves through a step-by-step analysis of the evolution of Goal 14 and its amendments in 1988 and 2000. The article discusses the important factors that influence urbanization and application of Oregon’s statutes and rules, including population forecasting and the urban reserves process. Next, the article covers the interplay of Goal 14 with other Oregon Statewide Planning Goals and administrative rules. Most importantly for planners, the article examines the Goal 14 case law development over the 40 years since its inception. The article explores the “need” cases, locational factors, and need v. location. In Ed Sullivan’s artful manner, he manages to summarize the McMinnville case (1000 Friends of Oregon v. LCDC) in two paragraphs!

Of course the article would not be complete without the final discussion of the Barkers Five, LLC v. LCDC, 323 decision and the Grand Bargain. The stakes are high for property holders on the edge of the UGB and every one of them is vying to be next in line for inclusion within the boundary. We are left with the question of whether a legislative fix will be required in every circumstance – politicizing the planning process to an even greater extent than already exists.

 

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