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
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
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
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
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
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
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
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
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
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
Earlier this year we wrote about the Ninth Circuit Court of Appeals case of Horne v. Department of Agriculture (here). In that case, the court of appeals ruled that a Department of Agriculture marketing order that required raisin farmers to divert a certain percentage of their crops to a reserve without compensation was not a categorical or … Continue Reading
We will find out the answer to that question later this year from the United States Supreme Court in Horne v. Department of Agriculture. At issue is whether the Department of Agriculture can subject raisin farmers to a marketing order requiring the farmers to divert a certain percentage of their crop to a reserve that is … Continue Reading
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 family car destined to become a thing of the past? Adherents of Smart Growth have been scanning the horizon for the last 15 years, keenly attuned to any trends that might foretell the demise of the automobile and the ascendancy of bikes and transit. A recent Fortune article may warm the hearts of those who have been waiting … Continue Reading
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
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
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
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
The U.S. Supreme Court scheduled oral argument for April 23, 2014, in CTS Corp. v. Waldburger. For some cases brought under state law and involving hazardous substances, CERCLA preempts state statutes of limitation under 42 U.S.C. 9658.… Continue Reading
The Port of Portland has withdrawn its consent for City of Portland annexation of 800 acres that the Port owns on West Hayden Island. The Port had hoped to use at least 300 acres of that property for auto and bulk-product marine-terminal development, with the remaining 500 acres retained as recreation and wildlife habitat.… Continue Reading
The 2013 Oregon legislative session was a fairly quiet one for land use law, but a few new laws coming out of the session will likely have a fairly significant impact on certain aspects of land use. The concern about economic conditions in Oregon and a desire to keep the state moving in the right … Continue Reading
As I write this, we are in the middle of the Major League Baseball playoff season, so it’s fitting to quote Yogi Berra: “It’s like déjà vu all over again.” Clark County adopted its first comprehensive land use plan in 1994 in response to the mandates of the 1990 Growth Management Act. This first plan, … Continue Reading
The United States Supreme Court decisions in Nollan v. California Coastal Commission and Dolan v. City of Tigard determined that the Fifth Amendment to the United States Constitution (the “Takings Clause”) requires heightened scrutiny for land use permit decisions that condition approval on an exaction of property. In those cases, the Court held that a unit of government may … Continue Reading
To avoid the potentially staggering environmental cleanup liabilities under the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Oregon cleanup statute, a prospective landowner or tenant must have conducted all appropriate inquiries (“AAI”) into the previous ownership and uses of the property consistent with good commercial or customary practice. Because the Oregon … Continue Reading
