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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.

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.

Foley v. Orange County, 2016 WL 361399 (11th Cir.) involved a zoning enforcement action taken against Plaintiffs by Defendant County for having unpermitted accessory buildings that housed a toucan-raising operation, which was upheld through the local administrative process and state courts. Plaintiffs then filed a federal action making various state and federal law claims against county employees in their individual and official capacities, challenging the denials and the county authority to regulate and asserting various civil rights claims. Both parties moved for summary judgment and the court granted partial summary judgment on one state claim to plaintiffs, while granting summary judgment to the county on the remaining claims and finding immunity for county employees. Plaintiff appealed summary judgment on their substantive due process, equal protection, compelled and commercial speech and illegal search and seizure claims. The court reviewed the summary judgment decisions de novo. The court said it would dismiss a claim, inter alia, if it were wholly insubstantial or frivolous, i.e., if had no plausible foundation or a prior Supreme Court decision clearly forecloses the claim.

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.

When a borrower defaults on his or her commercial real estate loan in Washington, the bank has a number of options for collecting the debt.  Lenders usually secure their real estate loans with deeds of trust, which gives the lender the option to foreclose on the collateral either non-judicially through a Trustee’s Sale, or non-judicially through a judicial foreclosure and subsequent Sheriff’s Sale.  In each of those situations the rules governing the borrower’s and guarantor’s continuing liability on the loan after the sale differ.

Hartman v. Zoning Hearing Board of Cumru Township, 2016 WL 555676 (Pa. Cmwlth.) involved a challenge to respondent’s approval of an application by the St. Francis Home for a residential building permit in a single family zone to provide treatment to up to three terminally ill patients in a family-like environment, each having their own bed and bath rooms with a common living, kitchen, and dining area. Volunteers would provide for comfort and care, but the residents would have their own support services for such items as nursing and healthcare. An adjacent landowner appealed the grant of these and related permits and respondent found the use to be lawful in a single-family zone. The trial court affirmed.

Buehrle v. City of Key West, 813 F3d 973 (11th Cir., 2015) was a challenge to Defendant’s ordinance limiting the number of tattoo parlors in its historic district.  When Plaintiff challenged the ordinance in state court, Defendant removed the case to federal court.  On cross motions for summary judgment the trial court accepted Plaintiff’s contention that tattooing was protected First Amendment expression, but  also found the ordinance to be a reasonable time, place and manner restriction.

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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.
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