Funds for Infrastructure: Challenges and Opportunities

In his fiscal year 2012 budget, President Obama included a proposal for a new, six-year surface transportation programworth $556 billion. In the first year, the budget proposes $50 billion in spending on roads, railroads and airport runways as a way to generate jobs. Although this is a lot of money, it is just a drop in the bucket in relation to the size of the problem. In the Portland, OR, metropolitan region alone, a 2008 study indicated a need to spend at least $27 billion over the next 30 years in order to address infrastructure needs. Extend these projections across the country, and one can see the magnitude of the problem. Crumbling roads, failing bridges, fracturing pipes, and all the negative economic impacts that result, are what we look forward to unless the situation is effectively addressed.

Sendai Earthquake: Is the Pacific Northwest Next?

Sendai, Japan, has just experienced a horrific subduction earthquake and tsunami arising from its proximity to the so-called “Japan Trench.” Some geologists think that Seattle and Portland have a 10 to 14 percent chance of experiencing a similar M 9.0 subduction earthquake in the next 50 years because of their proximity to the so-called “Cascadia Subduction Zone.” Such an earthquake would have a catastrophic effect on the Washington and Oregon Coast (compounded by a tsunami) and would cause major damage along the I-5 Corridor, destroying infrastructure and many buildings.

Building a TOD? How to Keep on Track

Should you consider building a TOD? Transit-oriented developments have been around for more than 25 years. A unique blend of transit infrastructure and office, retail and residential development, TOD is an approach to leverage the opportunities provided by access to high-quality public transportation. The purpose of TODs is to reduce the dependency of the public on automobiles, reducing the amount of vehicle miles traveled. TODs are often located near light rail or trolley stations, but also can be located near transit centers that may also include a combination of bus and light rail and/or trolley lines.

“Regulatory Takings” Case From Ninth Circuit Gives Ammunition to Land Owners

The Ninth Circuit Court of Appeals issued a recent ruling in Guggenheim v. City of Goleta, 2010 WL 5174984 (C.A.9 (Cal.)), which could have a far-reaching impact on future “regulatory takings” claims challenging governmental regulations as a ” taking” of property for which an owner is entitled to compensation.

Real Property Transfer Tax Battle In Oregon Begins Again

Oregon Revised Statute 306.815 presently prohibits any city, county, district, or other political subdivision or municipal corporation from imposing a transfer tax. The only exception is the existing transfer tax in Washington County. In virtually every session of the Oregon Legislature, there are bills to allow the imposition of transfer taxes.

Washington Court Addresses Contractual Allocation of Environmental Cleanup Liability

Parties who want to shift or limit their liability for environmental cleanup would do well to heed the latest Washington Court of Appeals ruling, which found that an expired contractual indemnity agreement was insufficient to preclude later liability for cleanup costs under the Washington Model Toxics Control Act (“MTCA”).

Infrastructure and Economic Development

On Sept. 6, President Obama announced a proposal to spend $50 billion in the next year on roads, railroads and airport runways. This is a lot of money, but is just a drop in the bucket in relation to the size of the problem. In the three-county Portland metropolitan region alone, a 2008 Metro study indicates that we will need to spend at least $27 billion over the next 30 years to address infrastructure needs. Crumbling roads, failing bridges, fracturing pipes, and all negative economic impacts that result, are what we look forward to unless the situation is effectively addressed.

Change is in the Air for Some Smaller Wineries

Since 1987, smaller wineries have enjoyed a special legal status that allows them to be located on Exclusive Farm Use (“EFU”) zoned land if they meet certain production and acreage parameters: (a) Wineries producing
under 50,000 gallons per year must have an onsite or contiguous vineyard of at least 15 acres; and (b) Wineries producing 50,000 – 100,000 gallons per year must have vineyards of 15-40 acres. See ORS 215.452.

Ninth Circuit Defines When “Ownership” is Determined for Cost Recovery Purposes

According to the U.S. Ninth Circuit Court of Appeals, ownership for purposes of cleanup liability under the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA,” also known as the “Superfund” law) is determined at the time that cleanup costs are incurred and not when a later cost recovery lawsuit is filed. Although CERCLA is 30 years old and has been amended several times, this is the first time that any court has directly addressed the question of when an owner is liable for cleanup costs, clarifying what had been one of many murky areas in CERCLA.

Forming an ECODistrict

The movement behind ECODistricts is gaining momentum. Around the country and, most notably, in the Pacific Northwest, civic leaders, sustainability experts and leadingedge property developers are exploring the concept of ECODistricts. ECODistricts take the most successful elements of sustainable practices in the environmental, social and economic fields, and combine them into a single neighborhood to achieve a new level of sustainability.

ECODistricts Take Shape

The newest planning tool being talked about in the world of sustainability is the ECODistrict. It’s a unique Green building concept that takes the most successful elements of sustainable practices in the environmental, social and economic fields and combines them into a single neighborhood to achieve a new level of sustainability. View full article (PDF).

This article appeared in BUILDERnews magazine.

Washington Supreme Court Gives Green Light to State Approval of Wind Farms Over Local Objections

A unanimous Washington Supreme Court ruling on November 20 should give backers of large-scale wind projects a major boost in their efforts to build wind farms in this state. In Residents Opposed to Kittitas Turbines v. Energy Facility Site Evaluation Council (“ROKT”), the court ruled that the Governor and the state Energy Facility Site Evaluation Council (“EFSEC”) have the power to override local zoning ordinances that might hinder development of wind projects. View full article (PDF).

Land-use law will spark some old-fashioned horse trading

Oregon is well known for its statewide land-use planning program, heralded by many as protecting agricultural and environmental interests from against urban sprawl. View full article (PDF).

This article first appeared in Portland Business Journal.

Metro Area Urban and Rural Reserves: Senate Bill 1011 (2007)

Senate Bill 1011, passed by the 2007 Oregon Legislature (codified as Chapter 723, Oregon Laws 2007), addresses deficiencies in the growth management and urban growth boundary (“UGB”) expansion processes in the Portland metropolitan area. Existing state laws governing UGBs are based on a land hierarchy protecting farm and forest land. As a result, urban growth boundary additions have sometimes been pushed into areas where development is not cost-effective because of lack of proximity to other urbanized areas and the high cost of providing infrastructure, and this system has not always protected the most important farm and forest land. SB 1011 addresses this problem by establishing a system to designate where urban expansion will and will not occur on land outside UGBs over a 40-50 year period. View full article (PDF).

Measure 49 Synopsis

On November 6, 2007, Oregon voters approved Measure 49, a legislatively crafted revision of Measure 37. Adopted in 2004, Measure 37 gave certain landowners the right to make a claim for just compensation against state or local governments if land use regulations imposed, after they acquired their properties, reduced their value. Public entities facing Measure 37 claims had the option of avoiding compensation by allowing claimants to use their property free of the subsequently enacted regulation — and such “waivers” were the most common governmental response. In many cases, however, there were disputes about the date on which “ownership” was established for purposes of Measure 37 and other issues relating to the scope or transferability of the waiver. View full article (PDF).

What Measure 49 means for business – Search for workable compromise won’t end

Measure 49 generally eliminates the rights of most business claimants under Measure 37, and it complicates those rights that remain. View full article (PDF).

This article first appeared in the Portland Daily Journal of Commerce.

Measure 37: Approaching Year Zero Plus Three

Three years after voters passed Ballot Measure 37 in Oregon, there is still a queue of court cases in a holding pattern due to unanswered questions about this initiative, particularly with regard to the ownership status of the parties involved. As a result, new legislation is in the works that might remedy some of the legal challenges this initiative has created. View full article (PDF).

Effect of Dissolution of Condo Developer – Washington Supreme Court Speaks Out

In Ballard Square Condominium Owners Ass’n v. Dynasty Const. Co., 126 Wn. App. 285, 108 P.3d 818 (2005), the Washington State Court of Appeals did a relatively extensive analysis of Washington’s corporations statute in determining that the dissolution of the corporation prior to the time that the claim for damage arose did, in fact, cut off the claims of the homeowners’ association under Washington law. The reasoning of the decision caused some to believe that the early dissolution of a developer and builder of a condominium is a legitimate “strategy” in setting up transactions. View full article (PDF).

Court of Appeals Decision Addresses Standards for Compliance With Notice and Claims Procedures for Construction Contracts

Are cracks beginning to appear in the doctrine of strict compliance with construction notice and claims procedures? Last week’s decision by the Washington Court of Appeals (Division II) suggests that the three year old rule laid out by the Washington Supreme Court in the Mike M. Johnson, Inc., v. Spokane County case may not be the last word on the strict compliance standard. View full article (PDF).

Oregon Supreme Court Upholds Measure 37 (Environmental)

On February 21, the Oregon Supreme Court handed down a comprehensive decision upholding the constitutionality of Ballot Measure 37, a 2004 voter-passed initiative that requires compensation when certain land use regulations reduce the value of private property. While many issues concerning the application of Measure 37 remain to be resolved, the Supreme Court’s decision closes an important legal chapter in a longstanding controversy over the reform of Oregon’s land use laws. View full article (PDF).

Oregon Court Declares Measure 37 Unconstitutional

In a decision earlier this month, the Marion County Circuit Court declared Measure 37 unconstitutional. The opinion is the first (although certainly not the last) to address the validity of the 2004 ballot measure, which required that state and local governments must provide compensation when certain land use regulations reduce the value of private property acquired before the regulation was first enacted or enforced. View full article (PDF).

Substantive Due Process Claims in the Land-Use Context: The Need for a Simple and Intelligent Standard of Review

When a municipal government denies a landowner’s permit or zoning application, the landowner does not have a legitimate “takings” claim if the land is still economically viable. In this situation, an aggrieved landowner can bring a federal claim for violation of substantive due process under section 1983 of the Civil Rights Act for denial of her fundamental right to property. The federal circuits approach these claims in a variety of different ways, but, as illustrated by a recent Third Circuit decision, all the circuits are moving toward very strict standards of review that may eventually bar these cases entirely in federal court. Although federal courts’ concerns of becoming “zoning boards of appeal” are legitimate, this Comment advocates for a standard of review that not only allows these cases to be heard in federal court, but recognizes the unique land-use context. This standard must balance the due process harm to the landowner against the legitimate government interest furthered by denial of the application.

Oregon’s Gold Rush – Staking a Claim Under Oregon’s New Property Rights Law

For those developers or builders looking for opportunities in Oregon, be aware of the new gold rush taking place. Forget the mining claims of yesteryear, we’re talking about claims arising under recently enacted Measure 37. Like any unproven land claim, however, the dust has yet to settle on this initiative-sponsored law. View full article (PDF).

This article first appeared in BUILDERnews Magazine.

Court Restricts Appeals In Oregon Land Use Cases

A recent decision by a closely divided Oregon Court of Appeals, League of Women Voters of Coos County v. Coos County, Or App, P2d (CA A111594, September 26, 2001) (Utsey), has changed the requirements for appeals fiom decisions by the Oregon Land Use Board of Appeals (LUBA). The probable effect is that unless Utsey is appealed to the Oregon Supreme Court, which seems likely, statewide organizations, such as Oregonians in Action and the League of Women Voters, may find it more difficult to obtain judicial review of LUBA orders. View full article (PDF).

Oregon Circuit Court Stops Measure 7

On Thursday, February 22, 2001, Oregon Circuit Court Judge Paul J. Lipscomb issued his opinion on Ballot Measure 7 in a suit for declaratory judgment brought by Audrey McCall, Hector McPherson, the League of Oregon Cities, and many other supporters of Oregon’s existing land use planning program. Judge Lipscomb concluded that the preliminary injunction he issued on December 6, 2000, should be made permanent and formally declared that Measure 7 was not validly enacted in accordance with procedures required by the Oregon Constitution. Judge Lipscomb emphasized that his opinion did not address the merits of Measure 7. View full article (PDF).

The Oregon Attorney General’s Measure 7 Opinion

On February 13, 2001, Oregon Attorney General Hardy Myers released an opinion which interprets Ballot Measure 7. Measure 7 amends the Oregon Constitution to require state and local governments to pay landowners in certain circumstances when government regulation reduces the value of their real property. Since Measure 7 passed on November 7, 2000, supporters of Oregon’s land use program and property rights activists have disputed its scope and meaning. This short summary of the Attorney General’s opinion, which addresses specific questions posed by Governor Kitzhaber, will help our clients and others to understand the likely impacts of Measure 7 if it is upheld against pending constitutional challenges. View full article (PDF).