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ORS 701.640 May Not Void Forum-Selection and Choice-of-Law

Miller Nash partner Jacob Zahniser had an article published in the Oregon State Bar Construction Law Section’s Construction Law Newsletter concerning little-discussed elements of construction contracts. The link to the full story is available below. Do not underestimate forum-selection and choice-of-law clauses when coupled with an arbitration provision; ORS 701.640 may not apply and your client … Continue Reading

Industrial Lands Legislative Initiatives

Ensuring a ready supply of industrial land is an important part of maintaining and encouraging family wage jobs and new economic activity in the state. There are two bills that have been introduced in this legislative session for that purpose. The first would create a partially forgivable state loan program that would help to underwrite … Continue Reading

Climate Change

President Obama said in his inaugural speech on Monday that: “We, the people, still believe that our obligations as Americans are not just to ourselves, but to all posterity. We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations. Some may still … Continue Reading

Expansion of CERCLA BFPP Defense for Tenants

In early December 2012, US EPA issued a revised guidance that expands the bona fide prospective purchaser (“BFPP”) defense for tenants. Specifically, the revised guidance states that EPA will exercise its enforcement discretion on a site-specific basis to apply the defense to all tenants who are otherwise independently fulfilling the statutory BFPP requirements. … Continue Reading

Portland City Council to Review New Off-Street Parking Study for Multi-Family Buildings

Portland City Council will take up the issue of parking and new multi-family developments on Thursday, January 10, 2013. As noted in a previous blog entry (September 20, 2012), there has been concern by neighbors and others in the vicinity of recently constructed multi-family buildings that not enough off-street parking is being provided to new residents … Continue Reading

Vested Rights Remain Alive and Well in Washington

In an opinion filed January 7, 2013, a Washington Court of Appeals reaffirmed this state’s already strong vested-rights doctrine. The court in Town of Woodway v. Snohomish County ruled that an application for an urban center development and commercial building permit vested under the zoning rules in effect at the time of the application’s filing even though … Continue Reading

U.S. Supreme Court Rules That Government Could Be Liable for an Unconstitutional Taking of Property by Allowing Temporary Flooding of Timberland

The U.S. Army Corps of Engineers periodically released water from the Clearwater Dam in Missouri at the request of farmers. The release caused temporary flooding of nearby timberland during the peak growing season, destroying valuable timber owned by the Arkansas Game and Fish Commission. The Commission sued the United States, alleging that the property damage … Continue Reading

Carried Interests…what happens now?

With the presidential election in the books and the national headlights shining over the fiscal cliff, the real estate investment and development world are more concerned that capital gains treatment of “carried interests” is on the table of negotiations.… Continue Reading

The United States Supreme Court Will Decide an Important Takings Case This Term

Recently, the U.S. Supreme Court has accepted review of a case that should decide the extent to which the Nollan/Dolan takings analysis can be applied to development permit conditions. This analysis typically applies when government issues a development permit conditioned on the owner dedicating land to the public for public use without just compensation in order to … Continue Reading

Stormwater Permit Compliance

A recent criminal prosecution of a Washington developer provides a stark reminder of the importance of stormwater permit compliance. Brian Stowe was sentenced on October 10th to six months in jail and fined $300,000 for violating the Construction Stormwater General Permit. Stowe obtained coverage for his company under the General Permit but failed to install required … Continue Reading

The Tax Man Cometh for Your Real Estate Income

As part of the financing of Obama Care, Congress created Internal Revenue Code Section 1411, which created a new 3.8 percent Medicare tax. The new Medicare tax will take effect on January 1, 2013, and will apply to net investment income of individuals with a modified adjusted gross income of at least $200,000 ($250,000 for … Continue Reading

The Parking Wars

If you want to get people in the denser areas of Portland excited, all you have to do is bring up the subject of parking. There are parking disputes, frustrations, “differences of opinion,” and differences in philosophy all over the City about how much, where, and what kind. For example, whether or not Northwest Portland … Continue Reading

The Washington Supreme Court Rules That a Property Owner May Adversely Possess Government Lands Under Limited Circumstances

It has been commonly understood that title by adverse possession cannot be acquired against the government. Thus, if a property owner has been openly and continuously using government land as its own property for over ten years, that property owner cannot acquire title through adverse possession. If the owner adversely possessed private property, on the … Continue Reading

IRS Charitable Deduction Gotcha Eliminated for Donated Real Estate

After more than a decade of uncertainty, the IRS has finally come around to ruling that charitable donations made to the wholly owned and controlled limited liability company (“LLC”) of a single qualified U.S. charity under Section 170(c)(2) of the Internal Revenue Code (“IRC”) will qualify under IRC Section 170 for the charitable income tax … Continue Reading

Once Again: Unless the Exaction Meets Nollan it’s Unconstitutional

The Oregon Court of Appeals recently decided another case that underscores the importance of the nexus prong of a takings claim. In Jed Brown v. City of Medford, the court found unconstitutional the City of Medford’s attempted street right-of-way exaction in a two-lot partition. The property at issue abutted Finley Lane to the north and a partially … Continue Reading

When Is Government-Induced Flooding Across Private Property a Taking Instead of a Tort?

We will find out next year when the United States Supreme Court hears and decides the case of Arkansas Game & Fish Commission v. United States. In this case, the United States Corps of Engineers implemented its water-control plan for the operation of the Clearwater Dam. Implementation consisted of the release of water that caused temporary … Continue Reading

First Home Buyers: Lost or Just Waiting?

Media speculation of how the burst bubble of 2008 will change 20-something homebuyers is fairly thick. Are they really a gun-shy “lost generation,” just sinking under student-loan debt, or are they carefully waiting for a more certain market? Business Week has a good take on why they remain renters.… Continue Reading

Columbia River Crossing Project May Be Delayed If New Lawsuit is Successful

Thompson Metal Fab, Inc., is suing the U.S. Department of Transportation, alleging that the Environmental Impact Statement for the Columbia River Crossing project (new I-5 bridge) failed to adequately account for the social, environmental, and economic impacts to users of the Columbia River. In particular, Thompson Metal Fab’s business would be adversely affected because the … Continue Reading