Archives: Land Use

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Will a New Restriction on the Size of Homes Qualify for Measure 49 Relief? The Oregon Court of Appeals Says No.

On December 30, 2020, the Oregon Court of Appeals released its first decision interpreting statutory provisions governing prospective Measure 49 claims. The question in Moore v. City of Eugene, 308 Or App 318  (2020) is whether a residential dwelling size restriction adopted and applied after petitioner purchased her property entitled her to Measure 49 protection. The court held … Continue Reading

COVID-19 and the Oregon Land Use Process

As with most things, COVID-19 has disrupted the land use permitting process in Oregon, causing questions and sometimes chaos for applicants and local governments who are in the middle of such processes. At this time, most local government offices in Oregon are closed to the public, although some are accepting the public by appointment only. … Continue Reading

Oregon Court of Appeals Gives a Boost to the State’s Provision of New Housing

On March 20, 2019, the Oregon Court of Appeals affirmed the Land Use Board of Appeals (“LUBA”) in a decision interpreting ORS 197.307(4), which is the “clear and objective” requirement of the ORS 197.295-.314 needed housing statutes. Warren v. Washington County helps ensure that the Portland metro region and other cities in Oregon can meet … Continue Reading

State of Oregon Loses Statutory Recreational Immunity Defense Under New Court of Appeals Decisions

ORS 105.682 provides immunity from contract or tort claims to landowners who permit the public the use of their lands for recreational purposes. Under that statutory provision, a recreational user or the estate of such a user cannot sue the landowner if that user suffers personal injury, death, or property damage from the use of the … Continue Reading

City of Corvallis Loses the First Round of the Voter Annexation Fight

On February 24, 2017, Judge Matthew J. Donohue, Benton County Circuit Court, released a decision upholding SB 1573, which exempts certain annexations from voter approval. A number of cities in Oregon have home rule charter provisions that require voter approval of annexations. This requirement, however, sometimes works at cross-purposes with Oregon’s overall land use planning system, which … Continue Reading

That Was Fast! 2017 Washington Legislature Proposes Bills Responding to the Hirst Decision

Last week, my colleagues wrote about the Whatcom County v. Hirst decision by the Washington Supreme Court. As a consequence of Hirst, if public water is not available to serve a development, a county must independently verify that water from wells is available before it issues permits, even for single-family or small-development construction that, in the … Continue Reading

Washington Supreme Court Strikes a Blow to Vested Rights

In a blog post dated February 17, 2016, we wrote about a decision of the Washington Court of Appeals in Snohomish County v. Pollution Control Hearings Board favorable to developers. At issue in the case was the Washington State Department of Ecology’s rule that required application of new stormwater regulations to all development proposals submitted … Continue Reading

Lack of Evidence of Prior Use Not Fatal to Implied Easement Claim

On August 10, 2016, the Oregon Court of Appeals issued a decision on an implied easement claim, finding that the lack of evidence regarding the use of the easement before the initial conveyance of the benefited property was not fatal to the claim. Dayton v. Jordan, 280 Or App 236 (2016).  In Dayton, the parties own abutting … Continue Reading

In Vino Perseverance: Winery Launch Faces Barriers to Entry

From The Ground Up contributor LeAnne Bremer recently had an article published in the Vancouver Business Journal titled “In Vino Perseverance: Winery Launch Faces Barriers to Entry.” The article discusses land use and permitting issues encountered by the founders of Windy Hills Winery in Clark County, Washington. From either his robust laugh or his aromatic cigar, Dave Kelly’s … Continue Reading

SCOTUS Provides Pathway to Courts’ Challenging Army Corps’ Wetlands Calls

Access to courts to resolve disputes early on in a permitting process is critical for land use projects in terms of time- and cost-savings. In Army Corps of Engineers v. Hawkes, issued on May 31, 2016, the U.S. Supreme Court effectively agreed by ruling that a permit applicant need not await the completion of the … Continue Reading

Justice Thomas Signals that the Supreme Court May Review Inclusionary Zoning

Just days after the Oregon Senate approved a bill that would allow inclusionary zoning—i.e. permitting local governments to condition the grant of incentives to developers on the inclusion of affordable housing in new developments—at least one United States Supreme Court Justice has sent a signal that the Court may wish to review such laws (as … Continue Reading

A Washington Court of Appeals Reaffirms State’s Strong Vested Rights Doctrine

The Washington Department of Ecology issued the 2013-2018 Phase I Municipal Stormwater Permit, which required certain counties and cities to adopt local regulations for controlling stormwater sewer systems for new development, redevelopment, and construction activities by June 30, 2015.  A key provision of the permit stated that the new regulations must apply to all development … Continue Reading

Washington Supreme Court Reaffirms Strict Appeal Deadline Rule

In the words of the Washington Supreme Court, it “has faced numerous challenges to statutory time limits for appealing land use decisions and has repeatedly concluded that the rules must provide certainty, predictability, and finality for land owners and government.” In its most recent pronouncement on this issue in Durland v. San Juan County, an opinion … Continue Reading

Is the Suburban-to-Urban Trend Reversing Itself?

The Wall Street Journal has published an interesting perspective on a recent national trend: the faster population growth in urban areas over suburban areas. There are likely as many explanations as there are urban and suburban areas, and not every urban/suburban area may be experiencing the phenomenon, but one thing is clear–the death of the suburbs … Continue Reading

Rush to the Permit Counter to Vest Your Project in the Event of an Appeal

In 2009, Snohomish County amended its comprehensive plan and zoning regulations to allow for a mixed-use/urban-center development in Point Wells. Soon after passage of these amendments, the developer applied for project permits. In the meantime, opponents of the project filed appeals of the amendments to the growth hearings board. Eventually, the hearings board invalidated the … Continue Reading

Neighbor Loses Right to Use Driveway: Prescriptive Easement Law in Flux?

The Gamboas continuously used a driveway located mostly on the property of their neighbors, the Clarks, for over sixteen years. The Gamboas’ use was open, notorious, and uninterrupted.  They sincerely believed they owned the land. The Gamboas never asked the Clarks’ permission to use the driveway, and the Clarks never gave it. The Gamboas maintained and made minor … Continue Reading

Court of Appeals Reverses and Remands LCDC’s Urban and Rural Reserves Decision

On February 20, 2014, the Oregon Court of Appeals issued its highly anticipated decision in Barkers Five LLC et al. v. LCDC. The Court reversed and remanded the decision of the Land Conservation and Development Commission (“LCDC”) approving Metro’s designation of urban and rural reserves in Washington, Clackamas, and Multnomah Counties.… Continue Reading