Garvey Schubert Barer is proud to sponsor the 2016 Housing Land Advocates Conference: Seeking Prosperity: The Role of Housing in Local Economies held on Friday, November 4, 2016 at David Evans & Associates in Portland, Oregon.
In Harbor Missionary Church Corp. v. City of San Bueanaventura, 642 Fed. App. 726 (9th Cir., 2016), plaintiff had a church ministry serving the homeless. Defendant told Plaintiff it needed a conditional use permit (CUP) and, when it applied for the same, denied it. Plaintiff then brought a suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), requesting a preliminary injunction to keep its ministry available pending appeal. The trial court denied the injunction, finding the church suffered no substantial burden under RLUIPA because it could move its ministry elsewhere and that the denial of the CUP was the least restrictive means of meeting the City’s concerns.
U.S. v. Grace, 640 Fed. Appx. 298 (5th Cir., 2016) involved the disposition of a sentencing remand by the Fifth Circuit in a zoning bribery case. Defendant mayor was charged with 13 counts of corruption involving four schemes, and was convicted on seven of those counts. The jury acquitted defendant on the remaining counts. In the first appeal, the court upheld the convictions, but remanded the case for resentencing, finding the trial court erred in its calculations.
Folsom v. Zoning Board of Appeals of Milford, 160 Conn. App. 1 (2015) involved the appeal of an unrepresented plaintiff who had successfully appealed a zoning enforcement officer’s issuance of a certificate of zoning compliance to his neighbor who wished to build a structure on adjacent property. Plaintiff then sought reimbursement for his incurred for that appeal, plus interest. On motion, that complaint was struck. Plaintiff filed another suit, alleging the zoning enforcement officer was personally liable to plaintiff for failure to enforce the zoning ordinance, that the Board of Zoning Appeals was liable for failing to disqualify itself from the underlying case over a conflict of interest, and the defendant city was liable to plaintiff for reimbursement of his costs. That complaint was also struck and plaintiff appeals the grant of both motions to strike.
A memorandum opinion in Neighbors for Fair Notice v. City of Seattle, 2016 WL 2754536 (9th Cir., 2016) disposed of a case in which Plaintiffs complained that Defendant City did not provide them with personal notice in approving a lot boundary line adjustment, contending that Washington’s Land Use Petition Act (LUPA) provided them with a protected property interest in the City’s proceedings in which a minimum lot size of 5000 square feet for single family homes could not be changed without those proceedings. The trial court dismissed the case finding no cognizable property interest under the circumstances. The trial court said that “only those rules and understandings that support legitimate claims of entitlement give rise to protected property interests” require notice and found that LUPA did not create such an interest so as to require notice.
The Ninth Circuit found the dismissal proper and affirmed. Because there was a discretionary decision and no vested right created under state law, the decision appears to be correct from a due process point of view. The due process clause of the Fourteenth Amendment protects “life, liberty and property” interests; thus, a plaintiff must show the existence of such an interest. Because Plaintiffs could not show the existence of such an interest, there was no constitutional claim to pursue.
Neighbors for Fair Notice v. City of Seattle, 2016 WL 2754536 (9th Cir., 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 email@example.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.
The 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.
In Walter v. City of Eugene, (LUBA No. 2106-024, June 30, 2016), the applicant appealed the City’s planning commission decision to deny an application for a planned development of a ten-lot subdivision with an additional lot left as open space. Land surrounding the subject site had been purchased by the City in 2014 to maintain as a natural area and part of a trail system, which would prevent the developer from extending a local road to the subdivision. Instead, the development relies on a proposed shared driveway. A hearings officer reviewed the proposal and denied the application under the local planned unit development (PUD) code that requires the street layout of the PUD to disperse motor vehicle traffic onto more than one public local street. The planning commission affirmed the hearings officer’s decision.
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