The 2013 Oregon Legislature had before it a proposal to apply “raise it or waive it” to legislative matters, plan amendments, or land use ordinance revisions. The legislature rejected this proposal but included a “note” in the budget for the Land Conservation and Development Commission (LCDC) to consider policy or legislation to deal with the issue. Before your eyes glaze over dear reader, let us define these terms and explain why this issue is important.
“Raise it or waive it” is a requirement that applies to “quasi-judicial” land use hearings – those involving the application of policy to one or a few parcels of land, such as a zone change, conditional use permit or variance. Quasi-judicial decision-making is where the applicant comes with a particular development proposal and the local government makes a decision, “yea” or “nay,” based on the adopted criteria. Local governments provide mailed and published notice of the proposal: describing the property, identifying the applicable criteria, and detailed hearing rules for a decision that must be issued within 120 or 150 days. That tradeoff promotes speed and efficiency in the land use process, if a party fails to raise an objection locally, she may not raise it for the first time on appeal.
In contrast, legislative amendments often affect large areas through changes to planning designations or changes to the text of those documents altering how various plan policies or regulations apply. They often do not focus upon specific properties; but rather are policy matters that apply to the entire local government or to large parts of it. The process of adoption is much more fluid. If notice is provided, as in the case of Measure 56 notice containing boilerplate text that a proposal could affect permissible uses of your property, it is done in the most general terms and most often comes with tax bills. Finally, that notice is often sent months or even years before the amendments are adopted and then, the proposal may look vastly different from what was originally proposed. Participants in a legislative process must be fastidious and dedicated to track an often-changing scope of proceedings and a large record where consensus amongst the staff or the decision-makers is not always obvious. Given that this is often a true sausage-making experience, state law does not require that participants raise all of their issues before the local government. Rather, by merely making an appearance, they are free to raise new issues for the first time at LUBA.
Some local government planners working on the front line, putting their soul into drafting and shepherding a legislative proposal through the approval channels, favor imposing raise or waive it onto legislative decision-making. From their perspective, cunning land use lawyers “wait in the weeds,” hold back their objections in order to kill a proposal on a legal front when they lack the necessary votes on the political front. Whether this is a “fair” legal strategy or not, it is true that a challenge to LUBA pursued by a single or small interested group can significantly delay (or derail) a legislative proposal completely frustrating the significant taxpayer funds and efforts expended in the effort and the inertia keeping these significant planning efforts on track.
Applying “raise it or waive it” to these policy endeavors is problematical for a number of reasons. First, there is no notice setting forth criteria and cautioning participants about the consequences of failure to raise issues and no limit on the time in which the decision must be made. Although the statutes could be amended to provide for more detailed notice or decision-making time limits, the bigger problem is the nature of the decision itself. Legislative decision-making is not a question of “to be or not to be.” It is a question about where and how to be. Unlike the situation for quasi-judicial hearings, the universe of criteria is so unlimited that providing a list of potentially applicable criteria would become a meaningless exercise. Only those with the time to participate from the stakeholder advisory meetings through adoption by the council or commission, or the fiscal resources to hire attorneys to do the same would be able to track the local proposals over an unlimited period to identify potential issues. Speaking as some of those attorneys accused of “laying in the weeds,” it is more often the case that we are retained at the end of the process when the extent of the impacts come into sharp focus but identifying all of the legal issues, sometimes when the final findings are available a week before adoption is difficult, even though it may be in our client’s best interest to do so.
Why is this important? Oregon has a long tradition of citizen involvement. The statewide planning goals were the result of intensive citizen involvement. Oregon allows to anyone who participates in a hearing to appeal a case to LUBA act as his or her own lawyer. If an industrial landowner fails to find out about hearings to enact new environmental regulations or if neighbors don’t find out about code amendments to allow inappropriate uses in residential zones, these folks may be foreclosed from challenging those regulations if they cannot contest them. Whether you liked the Portland parking requirements for multifamily housing near certain transit facilities, the fact remains that these and other regulations fly “under the radar” at present and could be immune from review if the “raise it or waive it” rule applies to legislative decision-making.
This next year LCDC is likely to make recommendations to the legislature on the application of raise it or waive it to policy matters. Whether citizen participation remains more important than the efficiency or cost-effectiveness of the Oregon planning program - that is the question.
This is one of the questions that will be decided by the Oregon Supreme Court in its review of Sea River Properties v. Parks, 253 Or App 643 (2012). Accretion is the creation of new coastal or riparian land through natural processes. In Sea River, the plaintiff sought to quiet title in approximately 40 acres of ocean front property located in Nedonna Beach on the Oregon coast. A substantial portion of the disputed land was formed by accretion caused by changes in the course of the Nehalem River prior to and as a result of the construction of a jetty in 1918. Title to the property has been in dispute since the mid-1970s. Sea River claimed titled based upon a deed referencing the Nehalem River coupled with its interpretation of the law on accretion. Defendant Loren Parks claimed title to the disputed property based on an 1888 deed from the State to one of his predecessors conveying title to the tidelands adjacent to his property coupled with the fact that the new land was formed on those tidelands. After a lengthy bench trial, the trial court found that Sea River had legal title to the disputed property. However, the trial court quieted title in Mr. Parks favor based on his counterclaim for adverse possession.
The judgment was appealed with both parties assigning error to the trial court’s decision. The Court of Appeals accepted the trial court’s findings of facts, but disagreed with the legal conclusions. The Court of Appeals held that new land formed by accretion is owned by the same party who owns the property upon which accretion began. As an example, the Court noted that all of the accreted land created by the formation of an island in a navigable river would be owned by the State even if it eventually reaches a shore owned by a private party. Based on this reasoning, the Court held that Mr. Parks was the record title holder of the disputed land because it was created by accretion on tidelands owned Mr. Parks.
The Court also held that Mr. Parks owned some of the disputed land based on the application of the doctrine of lateral accretion. The doctrine of lateral accretion holds that one riparian owner cannot extend its property laterally in front of other riparian owners simply because land began accreting laterally from the first owner’s land. Although the tidelands conveyed to Mr. Parks’ predecessor in 1888 had over time been divided from the remainder of his property by the movement of the Nehalem River, the Court found that Mr. Parks remained the owner of those tidelands under the doctrine of lateral accretion.
The Court of Appeals ruling raises an interesting question regarding ownership of land in Oregon created by accretion. All of the tidelands in the state of Oregon are owned by the State unless the State has conveyed it to a private party. See ORS 273.900. Based on the holding in Sea River, it would appear that, except in exceptional circumstances, all land formed by accretion in tidelands or navigable waterways are owned by the State.
The Sea River case is currently pending in the Oregon Supreme Court and argument was heard a few weeks ago. The questions to be decided include the following:
- What is the basic law of accretion in Oregon, i.e., when new land forms by accretion, who becomes the owner of the accreted land?
- What is the basic law of tidelands ownership in Oregon, i.e., how are the boundaries of tidelands established, and is there a temporal component to that determination?
- Has Oregon adopted the doctrine of lateral accretion, and, if so, how does it affect the basic law of accretion in Oregon?
The answers to these questions may have broad implications for the owners of coastal and riparian properties in Oregon. In addition, it could substantially expand the State’s ownership of dry land created by accretion in tidelands and rivers.
A buyer of real estate can often benefit from retaining a real estate lawyer to help with the purchase. However, as a recent Oregon Court of Appeal case demonstrates, channels of communication between attorney and buyer must be kept open, or the buyer may be at risk.
In Atkeson v. T & K Lands, LLC, et al., the plaintiff purchased a four-acre lot that was advertised as a potential home site with a stream, bridges, gazebo, and nature trail. The buyer agreed to purchase the lot “as-is,” but before purchasing, he retained an attorney to research its legal status. The plaintiff went on to purchase the property, but after closing, discovered several problems, including (1) the lot was within a wetland inventory and required a wetland delineation, and as a result, was potentially unbuildable, (2) the bridges and gazebo on the lot were built without required permits, (3) some improvements violated a 50-foot setback from the stream, and (4) the nature trails were improperly located in wetland areas. Further, the City declared the improvements on the property to be nuisances and ordered the plaintiff to remove them as well as undertake other corrective measures. When the plaintiff learned of the extent of the problems with the lot, he sued the seller to rescind the purchase, claiming he was the victim of a mutual mistake and innocent and intentional misrepresentations by the seller.
During pretrial discovery, the seller took the deposition of the plaintiff’s attorney. In the deposition, the attorney testified that before the sale he had known about the various problems with the lot and had told the plaintiff about those problems. The plaintiff disputed this. Based on the attorney’s deposition, however, the seller moved for summary judgment on the plaintiff’s claim for rescission, in part claiming that the attorney’s knowledge of the problems with the lot could be imputed to the plaintiff. In other words, the seller claimed that since the plaintiff’s attorney knew of the problems with the lot prior to closing, the buyer is deemed to have had knowledge of those problems before closing, and, therefore, the plaintiff could not bring a claim based on mutual mistake or misrepresentation.
The Oregon Court of Appeals agreed with the seller. It concluded that the attorney’s “knowledge about difficulties with the lot properly is imputed to plaintiff and that, on this record, that imputed knowledge defeats plaintiff’s rescission claim as a matter of law.” It didn’t matter whether the attorney actually told the plaintiff of the problems because, as a matter of law, the plaintiff was deemed to know everything the attorney knew about the lot. As a result, the buyer had no claim against the seller and was stuck with a very problematic lot.
Garvey Schubert Barer is co-sponsoring with Housing Land Advocates and David Evans and Associates a great day-long conference scheduled for October 18th – On The Street: Transportation and Affordable Housing. The updated agenda is posted here.
Note that HLA’s 2013 conference is intentionally taking place the day after the Fair Housing Council or Oregon’s (FHCO) 2013 Affirmatively Furthering Fair Housing Forum. You can click here to register for FHCO’s October 17th event.
Below you will find a detailed flyer from the Housing Land Advocates.
Your friends at Garvey Schubert Barer and
Jennifer Bragar, Housing Land Advocates President
We regularly update clients about changes in real estate law and on industry trends. This includes briefing clients on legislative proposals in the federal tax, housing and other legal areas affecting their businesses. Staying current enables you to anticipate and prevent legal problems as well as capitalize on new developments.