One of your faithful columnists, Ed Sullivan, is retiring after forty-five years of law practice at the end of 2014. While he will continue to write this column for a little longer, he shares his thoughts on the evolution of Oregon land use law over that time.
I graduated from Willamette University College of Law in 1969, having come to Oregon only three years previously and knowing no one when I arrived. Fortune directed me to Washington County, a very different place than it is now, to become an Assistant County Counsel, and in less than 18 months, County Counsel.
Fortune also smiled in giving me the Fasano v. Washington County case to brief and argue. This case involved approval of a manufactured home park in a suburban residential area now part of Tigard. But the case was a vehicle to ponder the way that Oregon views small area rezoning and the relationship of the comprehensive plan to land use regulation. While the County lost the case in 1973 because the findings (which I did not write) were inadequate, the case formed a solid basis for Oregon land use planning by requiring county land use regulations and actions to “carry out” a required comprehensive plan and treating small tract rezoning as “quasi-judicial” actions, requiring hearings officers or bodies to allow the presentation and rebuttal of evidence, to avoid or reveal ex-parte contacts, and to justify their decisions by findings. A similar case in 1974, Baker v. City of Milwaukie, required that cities align their regulations and actions to their plans as well. I was fortunate enough to appear as an amicus curiae before the Oregon Supreme Court on behalf of the predecessors to the American Planning Association and even more fortunate to be allowed to present oral argument to the court. These cases aligned well with the emerging Oregon planning system enacted in 1973 by SB 100.
After receiving my LL.M. in London, I entered private practice and represented applicants, opponents and local governments in many hearings and appeals. Among those cases were persuading Clackamas County to deny its own permit for gravel mining, getting approval of the Lake Oswego water system expansion from West Linn, getting the Douglas County plan and regulations acknowledged by LCDC, and assisting Cannon Beach in the adoption of its short term rental ordinance. I’ve also represented a number of local governments, including Oregon City for the last 25 years.
Perhaps my most unusual task was dealing with the Rajneesh sect, which came to Oregon in 1981 and sought to establish a city on the “Big Muddy Ranch” in Wasco and Jefferson Counties and managed to antagonize just about everyone. While the land use efforts were generally successful, the other activities of that group in taking over an adjacent city, poisoning salad bars and bringing in homeless people to register to vote in sparsely populated areas, resulted in its downfall. The offensive tactics of that group, and the reaction to them, tell us a lot about Oregon.
Besides the cases and controversies, I have been able to watch new planners and lawyers grow for over 40 years, teaching at the Portland State University School of Urban and Public Affairs and at the Lewis and Clark and Willamette law schools. In addition, I have been privileged to serve as Chair of the Section on State and Local Government Law of the American Bar Association, Regional Vice President of the International Municipal Lawyers Association, and have done many presentations on land use in the United States and internationally.
It has been a good run with fascinating people, places and events. While I will end my law practice, I hope to continue to teach, write and speak, especially on land use planning issues, for as long as those efforts are useful. Thanks for reading and commenting on this column.
Edward J. Sullivan has specialized in land use law for over 40 years and is an owner in the Portland Office of Garvey Schubert Barer. Mr. Sullivan is a Past Chair of the State and Local Government Law Section of the American Bar Association and may be reached at 503-228-3939 or at firstname.lastname@example.org.
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