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.

Oregon’s Measure 37

Oregon voters approved Measure 37, an initiative that will bring about significant changes in the practical effects of Oregon’s land use law. The initiative allows property owners to make claims for compensation against local government entities if the claimant’s property value has been reduced by certain kinds of regulations that come into effect or are first enforced after the claimant came into ownership. Ownership can be established if a member of the claimant’s family owned the property before the regulation was adopted. View full article (PDF).

Annexation

Under new case law, cities in Washington will no longer be able to annex land in the manner in which they have become accustomed over the past half-century. View full article (PDF).

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).