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Posts from August 2016.

Aaron Edelman is a guest author and a law clerk at Garvey Schubert Barer's Washington, D.C.'s office. You can reach Aaron at aedelman@gsblaw.com or at 202.298.1738.

The White House Council on Environmental Quality (CEQ) recently issued its final guidance to agencies to incorporate greenhouse gas (GHG) emissions and climate change into environmental reviews done in accordance with the National Environmental Policy Act of 1969 (“NEPA”). This release was the culmination of six years of work – building off of drafts released in 2010 and 2014.

In 2007, when the legislature established a system for designating urban and rural reserves, many observers saw the reserve process as a panacea to deal with the contentious process of changing the Portland Metro urban growth boundary (UGB). Under the urban reserve process, identifying urban land needs based on a 50-year projection rather than the historic 6-year cycle for changing the UGB, lands designated urban reserve would stand in the queue prioritized for inclusion in the UGB when expansion was appropriate. Similarly, land within any rural reserve was off-limits for consideration within the UGB within that same 50-year planning period.

Carman-HistoricThe City of Lake Oswego added the Carman House to its inventory of historic landmarks in 1990, pursuant to Statewide Planning Goal 5.  The oldest extant residential structure within the City, the Carman House is considered a rare and valuable example of a territorial Oregon residence.  The owners at the time, Mr. Wilmot and Mr. Gregg filed an objection to the designation.  However, since the city could designate a property as historic without a property owner’s consent, the property was designated over the owners’ objections.

Dayton v. Jordan, --- P3d --- (2016)

It is well established that a plat is generally sufficient to establish an express easement if it describes and depicts a roadway or trail sufficiently to reflect the intention to create an easement. Bloomfield v. Weakland, 224 Or App 433, 445-48 (2008), rev den, 346 Or 115 (2009).  In cases where a plat is insufficient to establish the intent to create an express easement, an easement may nevertheless be implied. In the typical case, an implied easement is not reflected in a deed or plat. Rather, it arises as an inference of the intention of the parties based on the circumstances existing at the time the land was divided and conveyed.  In those circumstances, the trial court applies the eight factor test established in Cheney v. Mueller, 259 Or 108, 118-19 (1971) to determine whether implied easement exists.  In Dayton v. Jordan, the Court of Appeals addressed the question of whether the trial court may short cut the Cheney test by implying an easement based almost exclusively on the depiction of the purported easement on the plat.  The Court of Appeals determined that the eight factor Cheney case must always be applied to establish an implied easement – even where the purported easement is depicted in a plat.

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