The Central Eastside Industrial Council and other interested businesses sought LUBA review of the City of Portland’s decision that a houseless rest area and tent camp for houseless persons was a Community Service Use allowed in the General Industrial Zone (IG1 Zone). The city’s decision would have allowed the Right 2 Dream Too (“R2DToo”) Camp to relocate from downtown Portland to land near Oregon’s Museum of Science and Industry. The subject property is designated as an industrial sanctuary in the city’s Comprehensive Plan.
Oregon’s Planning Goal 1, Citizen Involvement, requires citizen involvement “in all phases of the land use planning process.” The Goal requires local governments to provide for public input when land use plans and regulations are adopted and amended. Oregon law also requires, among other things, notice and opportunity to be heard during land use proceedings. Although one of the original land use goals, Goal 1 is rarely used or relied on by LUBA or the courts as a basis to overturn a local government decision; however, efforts to change its scope are constant. Oregon and Washington courts have recently had an opportunity to consider some creative efforts to alter the scope of public participation.
Housing Land Advocates (HLA) recently filed an appeal in the Land Use Board of Appeals (LUBA) against the City of Happy Valley in opposition to a comprehensive plan amendment and zone change. The application requested a downzone from multi-family to a single-family residential zone and approval of a 31-lot subdivision. The substantive issue in the case is whether the City made adequate Goal 10 findings related to the availability of land for affordable housing with the City (no such findings were made by the Planning Commission). The City of Happy Valley filed a Motion to Dismiss claiming that HLA did not exhaust its local appeal remedies prior to filing the appeal. However, HLA had submitted a detailed letter explaining that no local appeal was required for a comprehensive plan amendment because state law requires the local governing body – in this case the City Council – to make a final decision. HLA declined the City’s offer to pay a $1000 appeal fee and $2500 deposit for the City’s attorney’s fees to appeal the Planning Commission’s decision to the City Council. The City Council did not respond to HLA’s letter and the LUBA appeal followed.
Justice Antonin Scalia passed away last week after almost 30 years as a justice of the U.S. Supreme Court. Although his impact was felt throughout the country, it is worth pausing to look at how he affected the land use system more broadly and, in particular, Oregon’s system.
Improvement districts are authorized by statute to construct and operate permanent utilities for irrigation, drainage, diking, water improvement and water control throughout the State of Oregon. See Oregon Revised Statutes Chapters 545, 547, 551, 552 and 549. In some instances, the permanent utilities constructed and operated by these districts have been in existence for over 100 years. Often, these districts do not have title to the land on which the permanent utility is located nor do they hold recorded easements allowing access to maintain the infrastructure of the permanent utility. The lack of recorded property rights can lead to uncertainty as to what rights a district has to enter onto its members’ lands to operate, repair and improve the existing infrastructure of its permanent utility. Current landowners in a district may feel that their district does not have the right to enter onto their lands or that the district must obtain the right to enter their lands through voluntary acquisition or through condemnation. This creates a potential nightmare for an improvement district and its members when a landowner seeks to prevent a district from entering onto his or her land for the purpose of operating, repairing or improving the permanent utility. If this occurs, litigation may be the only option for the district or the landowner. This was the case in Davis v. Nye Ditch Users Improvement District, 247 Or App 266, 268 P3d 778 (2011).
In Nye Ditch, the predecessors-in-interest to the plaintiffs joined with neighboring landowners in the 1920s to dig the Nye Ditch to irrigate their lands for agriculture. Id. at 268. The plaintiffs Davis and Ritters each purchased property in the district in 2003 and 2006, respectively. Id. The plaintiffs’ properties benefitted from the Nye Ditch and it was visible from their land. Id. The Nye Ditch Users Improvement District was formed under Chapter 554 in 2006 and the plaintiffs’ lands were within the district. Id. at 268–69. The plaintiffs used the Nye Ditch and paid assessments to the district. Id. at 269. The district contracted with an excavation contractor to make improvements to the Nye Ditch on the Ritters’ property. The Ritters barred the excavation crew from entering their property and filed a lawsuit challenging the district’s authority to enter onto their lands. Id. The trial court granted summary judgment to the district finding that the district had the right to enter the land based on “(1) the easements belonging to landowners who draw water from the ditch, (2) ORS Chapter 554, and (3) defendant’s articles of incorporation.” Id. at 270. The plaintiffs appealed.
The Court of Appeals began its analysis by noting that the landowners drawing water from Nye Ditch, as neighbors who receive a “mutual benefit” through a “common enterprise,” hold easements to cross their neighbors’ property to access the Nye Ditch. Id. at 270–71 (citing Foster v. Foster, 107 Or 355, 368, 213 P 895 (1923); Luckey v. Deatsman, 217 Or 628, 634, 343 P2d 723 (1959)). The easements are appurtenant to and run with the land. Nye Ditch, 247 Or App at 271; Luckey, 217 Or at 636–37. The Court of Appeals further held that landowners’ easement rights included the right to access their neighbors’ property for repairs. Id. at 271 (citing Baumbach v. Poole, 266 Or 154, 157–58 n.1, 511 P2d 1219 (1973)). “The general rule, that a party who has a right of enjoyment, has also a right to enter and make necessary repairs, is essential to the enjoyment of the thing granted.” Id. at 271–72 (quoting Thompson v. Uglow, 4 Or 369, 372 (1873)).
The Court of Appeals went on to explain that the Nye Ditch Users Improvement District was entitled to exercise its members’ easement rights to enter onto its members’ lands to improve or repair the Nye Ditch. Id. at 275. The holding was based on the statute authorizing the formation of the district, ORS Chapter 554. In particular, the Court noted that ORS 554.110 gave the district’s board “full authority and power to . . . (1) Build, construct and complete any works and improvements . . . (3) Operate and maintain such works as are necessary, convenient and beneficial for said purposes . . . .” Id. at 274. The Court of Appeals found that the statute granted the district the right to enter the land of its members to improve or repair irrigation ditches by implication.
[W]here a power is conferred by an act, everything necessary to carry out that power and make it effectual and complete will be implied. Further that which is implied in a law is as much a part of it as that which is expressed. These long-established principles of statutory construction are universally recognized [.]
Id. at 275 (quoting Pioneer Real Estate Co. v. City of Portland, 119 Or 1, 10, 247 P2d 319 (1926)). “The legislature granted improvement districts the authority to act on behalf of individual landowners and to exercise, on their behalf, their common-law rights of improvement and repair and access necessary for that purpose.” Id. at 275.
The decision in Nye Ditch has a number of interesting aspects. First, it acknowledges that the landowners who band together to build a permanent utility have property rights in each other’s lands. Second, it takes that concept a step further to allow statutorily created and governed improvement districts to exercise its members’ property rights to operate, maintain and improve its existing infrastructure. Third, by allowing the districts to exercise its members’ property rights, the Court of Appeals appears to have bypassed the question of whether the District’s operation, maintenance and improvement of a permanent utility on the lands of its members constitutes a constitutional taking. By doing so, it removes the possibility that the members of the district may have to pay for the permanent utility twice – once when it was built and a second time to gain access to it. Thus, the Court of Appeals created an elegant solution to what is otherwise an intractable problem for improvement districts around the Oregon.
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).
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 email@example.com.
In 2007 the voters approved Measure 49 with the effect that certain property owners were authorized to develop additional home sites on land that many thought would see no new development. Now, DLCD is trying to breathe new life into the home approval authorizations through a transferrable development credit (TDC) program authorized under subsection 11(9) of Chapter 424, Oregon Laws 2007 (Measure 49) and ORS 94.531. According to the purpose of the draft regulations, this will enable landowners to realize the value of their Measure 49 authorizations without developing the property from which the claim arose. These programs will permit landowners, on a voluntary basis, to transfer their development interest under Measure 49 from one property (sending) to another property (receiving) at a more suitable location. DLCD hopes these programs will reduce the adverse impact of scattered residential development on farm and forest and other resource land.
Under the proposed regulations, each county can establish its own program and DLCD will provide a model ordinance. The new ordinance will require counties to amend their comprehensive plans to designate sending and receiving areas for the TDCs. The regulation will require identification of approved holders of conservation easements and allow some form of third party enforcement – likely by the county or DLCD.
TDCs will be measured as one credit for each new dwelling authorized under the Measure 49 Final Order from DLCD. But, what TDC program would be complete without a bonus provision? Density bonuses may be available for sending properties that agree to some form of protection based on size – where a conservation easement for sending areas greater than 20 acres or a deed restriction for smaller sending areas may qualify for bonus TDCs. Notably, a conservation easement would still allow for agricultural, forest, public parks, and conservation uses, as well as any lawyer’s favorite undefined use – “low intensity uses.” TDC bonuses may also be available by virtue of the sending land being designated resource land, including high value farmland, high value forestland, natural areas and historic sites.
The draft regulations identify a few areas that county ordinances can designate to receive TDCs. These include rural residential areas zoned with 5 and 10 acre minimums that would be allowed densities with minimum lots sizes of 2.5 or 5 acres, respectively. Also, substantially developed subdivisions in resource zones could benefit from increased density. Last, in EFU zones, TDCs could be used for the purpose of allowing a lot or parcel with two dwellings to be partitioned, subject to some limitations. Receiving areas are to be selected to minimize conflicts with agriculture and forest operations.
DLCD will be required to sign off on an Amended Measure 49 Final Order for property owners entering into a TDC arrangement. But, if you hold a Measure 49 authorization, beware - some Measure 49 properties may still not be eligible for designation as sending properties if they are unbuildable. TDCs are fully transferrable but will be subject to a 10 year development clock measured from when the TDC is issued by DLCDs Amended Final Order. Last, some regional transfer of TDCs may be allowed along the typical division – Metro, Willamette Valley, Coastal, Southern and Eastern counties of the state.
Based on DLCD’s efforts with these draft regulations, the Measure 49 debate is being rekindled and those who thought they had some certainty will again be thrown into a planning process that could include a variety of outcomes. Perhaps resource lands will be protected, but those in rural residential areas might not be too excited to be receiving the gift. Moreover, the bonus TDCs are certainly an enticement, and those who worked so hard to limit Measure 49 rewards may not be inclined to support additional development rights to holders of Measure 49 approvals and related TDCs. DLCD staff’s tentative plan is to bring a recommendation for the new rules to LCDC at the January 22-23 meeting in Portland.
Land use decision making in Oregon is highly structured; many complain that the formal structure delays increases the cost of decision-making. State law has long mandated that the approval or denial of a land use application must be in writing. All such written decisions must include written findings of fact, be based on consideration of the applicable standards and criteria, and be supported by substantial evidence in the record. All these requirements find their roots in typical state or federal administrative procedures act. Failure to comply with these requirements provides a basis for remand of a decision for reconsideration. This obligation applies to all local governments regardless of population or the number or qualification of local planning staff, from the City of Brooks to Wheeler County. Although these requirements may make land use decision-making more expensive and time-consuming for those who seek approvals, cases arise every now and again that cause Oregon to appreciate its state land use system. T-Mobile South, LLC v. City of Roswell, Georgia, currently pending review before the U.S. Supreme Court, is such a case.
T-mobile South, LLC (T-mobile) submitted an application to construct a 108–foot cell tower resembling a man-made tree in Roswell, Georgia. The location of the site, though planned inside a vacant lot, would be in an area zoned for single-family residences within a well-established residential neighborhood. Following an outpouring of public opposition to the tower, Roswell's Planning and Zoning Division recommended that the Mayor and city council, which ultimately approve applications after a public hearing, impose certain conditions before approving the application. Specifically, the Planning and Zoning Division recommended that T-Mobile should relocate the site to another part of the property, erect a fence around the tower, and plant pine trees to shield it from view of area residents. After a two-hour public hearing, city council members voted to deny the application.
Two days later, Roswell sent T-Mobile a letter notifying the company that the application was denied, without further elaboration, and referred the company to the minutes of the public hearing. T-Mobile sued Roswell and claimed that the city had not provided substantial evidence that would support a denial of the application. T-Mobile also argued that, by prohibiting T-Mobile from building the structure, Roswell violated the Telecommunications Act of 1996 (TCA). The TCA provides that a state or local government's denial of "a request to place construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.”
The district court did not rule on the substantial evidence question and instead held that Roswell had not met the “in writing” component of the TCA, which required the government to state the reason(s) for denying an application. The district court ordered Roswell to grant the permit, and Roswell appealed. The U.S. Court of Appeals for the Eleventh Circuit held that Roswell had met the “in writing” requirement by issuing a written denial and referring to the minutes of the hearing for the reasoning. The U.S. Supreme Court granted review, briefs have been filed and oral argument is scheduled for November.
T-Mobile has argued that the “in writing” requirement requires an explanation for the decision considering the approval criteria. It claims that by not requiring such analysis, applicants will have no other choice but to seek judicial review of decisions to determine the reasons for denial, significantly increasing the costs of providing communications services. Roswell, along with other amici, representing state and local government groups and the American Planning Association (APA), argued that requiring a detailed analysis for the decision would impose stringent procedural requirements that (1) is not borne out in the plain language of the TCA and (2) imposes significant additional costs on and unreasonably burden the ability of local governments to carry out land use regulation. According to the APA amicus brief, although zoning and land use personnel is not a specifically identified category, census data from 2012 reveals that 71% of municipalities do not have a single full-time paid employee to handle “other government administration,” including land use, and others in that group 33% have no more than one part-time paid employee. Finally, the amici argue that if the City erred in not providing a more detailed explanation of its decision, the remedy was a remand and not a reversal giving approval for tower siting without any local government review.
Even though Oregon has been requiring an explanation for individualized land use decisions for years, that would be a big step for the rest of the country. Even the APA hopes that the US Supreme Court’s analysis sticks with the more banal principles of statutory construction. After all, other parts to the TCA specifically require a more detailed writing including decisions by the Federal Communications Commissions that must “state that basis for its approval or denial.” Such differences in language choices are typically deemed deliberate. The Court should not conclude that local government planners are not equipped to handle the burdens imposed by explaining a decision in writing. Certainly, if the Court were to survey whether local government staffers make written decisions analyzing the criteria based on the facts, Oregon’s local governments, even with a skeleton crew, have been doing this for years, for which the State and its citizens may be truly grateful.
Garvey Schubert Barer is pleased to sponsor Housing Land Advocates’ Conference - Equity in Form and Function: Recent Trends in Housing Policy on November 7, 2014. Ed Sullivan and Jennifer Bragar will be featured speakers, and will be joined by other experts from across the nation. Join us for a 10th Anniversary Celebration of Housing Land Advocates’ work!
November 7, 2014, Ed Sullivan and Jennifer Bragar, will present during the Housing Land Advocates Conference on at David Evans and Associates, 2100 Southwest River Parkway, Portland, OR 97201.
See below for more details and links to conference registration, or learn more at www.housinglandadvocates.org.
Equity in Form and Function: Recent Trends in Housing Policy
Cosponsored by: Housing Land Advocates, Garvey Schubert Barer, and David Evans and Associates
Housing features prominently in the public discourse of 2014. The tiny house movement is gaining popularity with DIY builders, private developers are racing to complete micro-apartments, and democratically run self-help homeless communities are are seeking recognition along the West Coast. This year's Housing Land Advocates (HLA) conference continues these conversations but with a focus on the geography of equity. It asks how emerging housing forms can be used to further affordable and fair housing. It emphasizes the function of housing as a means of accessing opportunity. To this end, the conference offers an analysis of the U.S. Department of Housing and Urban Development's new regulations around affirmatively furthering fair housing and updates participants on the legal landscape of inclusionary zoning that is being tested by California Building Industry Association v. City of San Jose. HLA is bringing together national, regional and local experts to explore these concepts and issues and to consider ways to support a community vision that does not leave anyone behind.
Keynote Speaker: Marc Brenman
Teacher, author and policy expert on issues of diversity, equal opportunity employment and social justice, Mr. Brenman previously worked as the Executive Director of the Washington State Human Rights Commission, Senior Policy Advisor at the U.S. Department of Transportation, and Division Director for the Office of Civil Rights at the U.S. Department of Education.
9:00am Welcome from HLA President Jennifer Bragar
9:15am Affirmatively Furthering Fair Housing: Proposed Regulations and Actions to Consider
9:45am Inclusionary Zoning: Legal Developments
10:30am Morning Panel - Housing Affordability & Neighborhood Change
12:00pm Lunch and Keynote Speaker: Marc Brenman - Title VI Transportation Planning and Fair Housing
1:00pm Organized Networking Opportunities
1:30pm Gentrification: A Talk about N/NE Portland
2:00pm Afternoon Panel - There Goes the Neighborhood: Emerging Housing Alternatives
3:30pm Afternoon Panel - Inclusionary Zoning: Threats and Opportunities
AICP and Oregon State Bar CLE credit pending
David Evans and Associates
2100 Southwest River Parkway, Portland, Oregon 97201
Who We Are:
Housing Land Advocates was formed in 2004. We are a 501(c)(3) charitable corporation, and pursue our work as an entirely volunteer-run and -operated organization. We advocate for land use policies and practices that ensure an adequate and appropriate supply of affordable housing for all Oregonians.
Visit the website: http://housinglandadvocates.org/ for updates on conference speakers and registration information. Contact HLA at firstname.lastname@example.org for conference sponsorship opportunities.
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.