It is often easy to point the finger at land use decision-makers as biased, especially when it comes to highly charged development projects that require multiple election cycles to obtain approval.

Candidates run on particular platforms such as opposing big-box retail, liquid natural gas and public transit. Once elected, these local representatives must then consider quasi-judicial land use applications, decisions that require application of adopted approval criteria in an impartial manner, on issues that they have strenuously taken a general position. The question then becomes whether these elected decision-makers must step down because they cannot make an impartial decision.

The Oregon Court of Appeals considered this question in Columbia Riverkeeper v. Clatsop County, reversing the Land Use Board of Appeals’ ruling that a decision-maker’s statements and actions, taken together, indicated prejudgment bias that required recusal.

The Clatsop County Board of Commissioners in 2010 approved an application for a natural gas pipeline; this decision was appealed to LUBA. While the decision was pending, the Clatsop County board, with three newly elected commissioners, voted to withdraw the approval and reconsider its decision. Thereafter, the Clatsop County board denied the application. The applicant, Oregon Pipeline Company LLC appealed the denial, arguing that, among other things, Commissioner Peter Huhtala, one of the newly elected commissioners, had demonstrated disqualifying bias against OPC’s application.

The general rule announced by the Oregon Supreme Court in Fasano v. Board of County Commissioners of Washington is that parties to a quasi-judicial land use proceeding are entitled to a “tribunal which is impartial in the matter.” Impartiality can be destroyed through acts of self-dealing, bias and ex parte contacts. Bias can be the result of either a personal or pecuniary interest in the outcome or prejudgment of the matter.

That said, the court in the Fasano case did not explore what “impartiality” means when it comes to activities that rise to the level of prejudgment. Subsequently, the courts have clarified that impartiality relates to the parties and issues “in the matter” only and not to intense involvement in community planning or unrelated governmental activities more generally.

Further, as a result of being politically elected to both legislate as well as make adjudicative decisions, a party challenging impartiality must prove “actual bias” rather than just the appearance of such bias. An elected official is not expected to have no views on matters of community interest.

Finally, the courts have found that actual bias requires a finding that the decision-maker has so prejudged the matter as to be incapable of making a decision on the merits based on the evidence and arguments presented.

With this background, LUBA considered Huhtala’s activities. In reviewing the commissioner’s public statements and campaigning back to 2005 based on opposition of the construction of liquefied natural gas facilities anywhere in the Columbia River Estuary, LUBA found general statements of policy that did not require recusal. However, with respect to Huhtala’s opposition to an LNG terminal in Warrenton (including his participation in appeals to both LUBA and the Court of Appeals, although not technically the same project as the pipeline project at issue here), LUBA found that “the pipeline and terminal were parts of the same overall project and proposal” and therefore qualified as the same “matter.”

Further, LUBA found that Huhtala’s campaign statements made while the Clatsop County board considered this decision coupled with his participation in the board’s decision to withdraw its initial approval, when Huhtala’s vote was not necessary to make a decision indicated that his actions were driven by past opposition to LNG facilities and less by concern for proper application of the approval standards. Taken together, LUBA found that Huhtala was not capable of being impartial and should have refrained from voting.

The Court of Appeals disagreed with LUBA’s approach and found that although Oregon Pipeline Company’s application was part of a larger project involving multiple jurisdictions and facilities, the sole matter before the Clatsop County board was OPC’s pipeline application. The “matter” is prescribed solely by the discrete request subject to review. Huhtala’s opposition to other aspects of the larger LNG project or different LNG projects is entirely collateral to any actual bias to the subject application.

Further, the court found that none of Huhtala’s critical statements against LNG “explicitly, or by necessary implications, commit to an irrevocable position on the merits of OPC’s application.” The court could find no explicit statements that Huhtala prejudged the specific matter and LUBA’s reliance on Huhtala’s vote to withdraw the application was nothing more that circumstantial evidence of political predisposition providing the appearance of bias but not actual bias.

The lessons here are twofold. First, decision-makers are expected to be political, take strong positions and set those convictions aside as necessary to adjudicate matters based solely on the facts presented and the criteria at issue. Fairness occurs when decisions are correctly rendered and not when decision-making is delayed based on invalidation based on appearance alone.

Second, the bar for raising a claim for prejudgment bias is incredibly high. For example, statements by an elected official that he does not need to be objective or that when elected he will vote against a particular proposal are, as a practical matter, the only types of disqualifying bias that will suffice.

Edward Sullivan is a retired owner in the Portland office of Garvey Schubert Barer. He has specialized in land use law for more than 45 years. Contact him at esulliva@gmail.com.

Carrie Richter is an owner specializing in land use and municipal law in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at crichter@gsblaw.com.

The post OP-ED: High bar re-established for bias challenges appeared first on Daily Journal of Commerce.

After 45 years of law practice, I am retiring at the end of 2014. While I will continue to write this column for a little longer, here are some thoughts on the evolution of Oregon land use law over that time.

I graduated from Willamette University College of Law in 1969, having come to Oregon only three years previously and knowing no one when I arrived. Fortune directed me to Washington County, a very different place than it is now, to become an Assistant County Counsel, and in less than 18 months, County Counsel.

Fortune also smiled in giving me the Fasano v. Board of County Commissioners of Washington County case to brief and argue. This case involved approval of a manufactured home park in a suburban residential area now part of Tigard. But the case was a vehicle to ponder the way that Oregon views small area rezoning and the relationship of the comprehensive plan to land use regulation.

While the county lost in 1973 because the findings (which I did not write) were inadequate, the case formed a solid basis for Oregon land use planning by requiring county land use regulations and actions to “carry out” a required comprehensive plan and treating small tract rezoning as “quasi-judicial” actions, requiring hearings officers or bodies to allow the presentation and rebuttal of evidence, to avoid or reveal ex-parte contacts, and to justify their decisions by findings.

A similar case in 1974, Baker v. City of Milwaukie, required that cities align their regulations and actions to their plans as well. I was fortunate enough to appear as an amicus curiae before the Oregon Supreme Court on behalf of the predecessors to the American Planning Association and even more fortunate to be allowed to present oral argument to the court. These cases aligned well with the emerging Oregon planning system enacted in 1973 by SB 100.

After receiving my LL.M. in London, I entered private practice and represented applicants, opponents and local governments in many hearings and appeals. Among those cases were persuading Clackamas County to deny its own permit for gravel mining, getting approval of the Lake Oswego water system expansion from West Linn, getting the Douglas County plan and regulations acknowledged by the LCDC, and assisting Cannon Beach in the adoption of its short-term rental ordinance. I’ve also represented a number of local governments, including Oregon City, for the past 25 years.

Perhaps my most unusual task was dealing with the Rajneesh sect, which came to Oregon in 1981 and sought to establish a city on the “Big Muddy Ranch” in Wasco and Jefferson counties and managed to antagonize just about everyone. While the land use efforts were generally successful, the other activities of that group in taking over an adjacent city, poisoning salad bars and bringing in homeless people to register to vote in sparsely populated areas, resulted in its downfall. The offensive tactics of that group, and the reaction to them, tell us a lot about Oregon.

Besides the cases and controversies, I have been able to watch new planners and lawyers grow for over 40 years, teaching at the Portland State University School of Urban and Public Affairs and at the Lewis and Clark and Willamette law schools.

In addition, I have been privileged to serve as chair of the Section on State and Local Government Law of the American Bar Association, regional vice president of the International Municipal Lawyers Association, as well as give many presentations on land use in the United States and internationally.

It has been a good run with fascinating people, places and events. While I will end my law practice, I hope to continue to teach, write and speak, especially on land use planning issues, for as long as those efforts are useful. Thanks for reading and commenting on this column.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer and has specialized in land use law for more than 40 years. Contact him at 503-553-3106 or at esullivan@gsblaw.com.

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A recent New York case, Wallach v. Town of Dryden, illustrates a deep schism in conflicting public attitudes over energy and local governments’ regulation of land use. The case involved the authority of an upstate town to prohibit “hydrofracking” by landowners or their agents to produce oil or gas. Hydrofracking involves the injection of water into the ground in order to facilitate the production of oil and gas.

Dryden had a comprehensive plan (implemented by its zoning ordinance) that sought to preserve its “rural and small town character” and quality of life. Norse Energy Corp. USA acquired easements to explore and develop natural gas resources, but the town interpreted its zoning ordinance to prohibit that activity, because it was not specifically permitted. A “catchall” phrase applicable to all zones in the town said that if a use were not specifically permitted, it was prohibited.

After an inquiry was made on the lawfulness of proposed fracking, the town held a public hearing and then specifically prohibited these activities. Norse Energy then went to court and sued for a declaration that the prohibition was pre-empted by a state statute that provided that state oil and gas law superseded local laws and ordinances “relating to the regulations of the oil, gas and solution mining industries.”

A trial court upheld the town’s actions, except a purported invalidation of state and federal permits already issued. Norse Energy then went bankrupt and was represented in further proceedings by its trustee, Mark Wallach. An appellate court affirmed the lower court’s decision, and the New York Court of Appeals granted review by combining this case with a similar one involving the town of Middlefield, which also sought to regulate fracking.

The appeals court held that the “home rule” provisions of the New York Constitution allowed local governments to adopt regulations not inconsistent with state law, but required a clear expression of legislative intent to pre-empt those local regulations. The court undertook a lengthy exercise in statutory interpretation and concluded that, while the state statute did provide that state oil and gas statutes superseded local laws and ordinances “relating to the regulations of the oil, gas and solution mining industries,” that prohibition did not extend to zoning regulations, but only to the manner in which such mining operations were undertaken. Other portions of the oil and gas law relating to allowing local governments to regulate public roads or impose property or other taxes on these operations did not add any further weight to Norse Energy’s arguments.

Over two dissents that found the complete prohibition to be a regulation of mining prohibited by state law, the appeals court sided with the town that the prohibitions were valid and not pre-empted by state law.

While this was a case involving interpretation of New York law, the themes raised in the case resonate across the country.

The case has caused a stir in both the energy production and local government worlds. Proponents of energy production point to the national need to wean the country away from foreign oil and gas, the balance of payments and international relations problems that results from our addiction to foreign energy, and the jobs that would result from local energy production. Local governments counter with the impacts such operations have on the environment, on local plans and zoning, and occasional failure by state officials to implement regulations imposed by a far-away state government on a local basis.

There may be no single response to these concerns. State legislatures have the option to entrust both operational and land use regulations to a state agency in order to favor a uniform set of regulations to a given area. That same body may decide to allow local governments to undertake both operational and land use supervision of that area. Or the Legislature may decide to divide those responsibilities, as New York did, giving state agencies power to regulate the operational aspects of an industry, while leaving land use planning and regulation to the local governments having authority in a geographical area.

The Oregon planning system provides a variation on the latter theme by requiring state and local agencies to coordinate their plans and regulations to assure that regulations are consistent, coherent and responsive to state policy. That approach appears to provide the best defense against parochialism and the best opportunity for supportable energy and land use policies.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-553-3106 or at esullivan@gsblaw.com.

Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at crichter@gsblaw.com.

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Land use decision making in Oregon is highly structured; many parties complain that the formal structure delays the process and increases its cost. State law has long mandated that the approval or denial of a land use application be in writing. All such decisions must include written findings of fact, be based on consideration of the applicable standards and criteria, and be supported by substantial evidence in the record.

All these requirements find their roots in typical state or federal administrative procedures. Failure to comply with these requirements provides a basis for remand of a decision for reconsideration. This obligation applies to all local governments regardless of population or the number or qualification of local planning staff, from the city of Brooks to Wheeler County.

Although these requirements may make land use decision making more expensive and time-consuming for those parties who seek approvals, every now and again cases arise that cause Oregon to appreciate its state land use system. One such case is T-Mobile South LLC v. City of Roswell, Georgia, which is pending review before the U.S. Supreme Court.

T-Mobile South LLC submitted an application to construct in Roswell, Ga., a 108–foot cell tower resembling a man-made tree. The site, though planned inside a vacant lot, would be in an area zoned for single-family residences within a well-established residential neighborhood.

Following an outpouring of public opposition to the tower, Roswell’s Planning and Zoning Division recommended that the mayor and city council impose certain conditions before approving the application. Specifically, the Planning and Zoning Division recommended that T-Mobile build on another part of the property, erect a fence around the tower and plant pine trees to shield it from view of area residents. After a two-hour public hearing, city council members voted to deny the application.

Two days later, Roswell sent T-Mobile a letter notifying the company that the application was denied, without further elaboration, and referred the company to the minutes of the public hearing. T-Mobile sued Roswell and claimed that the city had not provided substantial evidence that would support denial of the application. T-Mobile also argued that, by prohibiting T-Mobile from building the structure, Roswell violated the Telecommunications Act of 1996. The TCA provides that a state or local government’s denial of “a request to place construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.”

The district court did not rule on the substantial evidence question and instead held that Roswell had not met the “in writing” component of the TCA, which required the government to state the reason(s) for denying an application. The district court ordered Roswell to grant the permit, and Roswell appealed.

The U.S. Court of Appeals for the Eleventh Circuit held that Roswell had met the “in writing” requirement by issuing a written denial and referring to the minutes of the hearing for the reasoning. The U.S. Supreme Court granted review, briefs have been filed and oral argument is scheduled for November.

T-Mobile has argued that the “in writing” requirement requires an explanation for the decision considering the approval criteria. It claims that by not requiring such analysis, applicants will have no other choice but to seek judicial review of decisions to determine the reasons for denial, significantly increasing the costs of providing communications services.

Roswell, along with other amici, representing state and local government groups and the American Planning Association, argued that requiring a detailed analysis for the decision would impose stringent procedural requirements that: 1, is not borne out in the plain language of the TCA; and 2, imposes significant additional costs on and unreasonably burdens the ability of local governments to carry out land use regulation.

According to the APA amicus brief, although zoning and land use personnel is not a specifically identified category, census data from 2012 reveals that 71 percent of municipalities do not have a single full-time paid employee to handle “other government administration,” including land use, and others in that group (33 percent) have no more than one part-time paid employee. Finally, the amici argue that if the city erred in not providing a more detailed explanation of its decision, the remedy was a remand and not a reversal giving approval for tower siting without any local government review.

Even though Oregon for years has required an explanation for individualized land use decisions, this step would be a big one for the rest of the country. Even the APA hopes that the U.S. Supreme Court’s analysis sticks with the more banal principles of statutory construction. After all, other parts of the TCA specifically require a more detailed writing, including decisions by the Federal Communications Commissions that must “state that basis for its approval or denial.”

Such differences in language choices typically are deemed deliberate. The court should not conclude that local government planners are not equipped to handle the burdens imposed by explaining a decision in writing. Certainly, if the court were to survey whether local government staffers make written decisions analyzing the criteria based on the facts, Oregon’s local governments, even with a skeleton crew, have been doing this for years. For that, the state and its citizens may be truly grateful.

Note: Both authors serve on the amicus committee for the American Planning Association.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-553-3106 or at esullivan@gsblaw.com.

Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at crichter@gsblaw.com.

The post OP-ED: A reason to appreciate Oregon’s land use system appeared first on Daily Journal of Commerce.

Recently, in the Lake Oswego Preservation Society v. City of Lake Oswego case, the Land Use Board of Appeals gave a huge boost to the historic preservation community and the protection of local historic resources.

ORS 197.772 is one of the few statutes regulating how local governments designate and protect historic resources. ORS 197.772(1) provides that where a property owner objects to any form of historic property designation, the local government must remove the designation. Subsection 3 of the same statute requires that the local government “allow a property owner” to remove a historic designation previously “imposed by the local government.” LUBA was asked to decide whether “a property owner” is limited to the owner at the time that the designation was imposed or whether a person who becomes an owner thereafter, in cases where the original owner objected to the designation, could also seek removal.

In 1990, the city of Lake Oswego designated the Carman House, a historic farmhouse and barn, along with a number of other properties to join the city’s historic landmark inventory. The property owners at the time filed an objection to the designation. While the city’s decision was pending review before LUBA, a fire on the property destroyed the barn. The city’s decision was withdrawn for reconsideration, and as a result the Carman House was designated without the additional acreage and without further objection.

The Mary Caldwell Wilmot Trust, the property’s current owner, sought to remove the Carman House’s historic designation under ORS 197.772(3). Lake Oswego City Council granted the request to remove the historic designation, concluding that the term “property owner” is not limited to the owner at the time the property was designated. Then neighbors appealed that decision to LUBA.

LUBA began its analysis by focusing on the text and context of ORS 197.772(3). LUBA found the text of the provision not terribly helpful because adding a phrase to limit qualifying property owners to those who made the initial objection would insert language into the provision just as including post-designation subsequent purchasers would also insert language, contrary to a law governing statutory construction.

Moving to the context, LUBA found that use of the same phrase “a property owner” in both subsection 1 and 3 of the statute suggests that the two phrases have the same meaning and refer to the initial objecting property owner. However, LUBA also noted that these two provisions have “different, non-overlapping circumstances that occur at different times,” suggesting an intent to describe different owners because the two categories are “mutually exclusive.”

What tipped the scales for LUBA was legislative history indicating that the purpose of subsection 3 was to allow property owners who “have been coerced into the historic property designation” to petition for removal. When one of the legislators was asked whether a person who bought a piece of property with a historic designation could seek to remove it, the response was: “We haven’t thought about that situation.”

A proposed amendment was offered that in cases where a local government designation occurs with concurrence from the local government, the obligation “runs with the land.” LUBA found that “taken together,” subsection 3 and the proposed amendment would treat subsequent owners the same as the original owner. If the designation was imposed over an objection, then a subsequent owner could request removal and conversely, if the initial owner consented, the subsequent property owner could not request removal.

This “run with the land” amendment was removed before final adoption. Without any discussion explaining why the amendment was deleted, LUBA concluded that elimination of the additional language that would have put “subsequent owners on the same footing as the property owner” provides the “strongest inference” that the Legislature did not intend this result. From this analysis, LUBA concluded that, although it is “a close question,” the Legislature did not intend for the term “property owner” to include people who become owners of property after it is designated, and the city erred in removing the designation based on ORS 197.772(3).

LUBA’s decision went on to find that a property owner’s failure to continually raise the objection through later stages of a proceeding does not mean that the owner withdrew the objection or implicitly consented to the designation. LUBA found that although the previous owner did not object to the subsequent designation of just the Carman House, he did not withdraw his previous objections.

LUBA’s decision makes sense from a policy perspective. Once a historic inventory designation is in place, subsequent buyers, presumably aware of the designation, should be assumed to have bought the designation along with all of the obligations that come with it.

Removal of the designation is still possible through Goal 5 and its implementing rules, but not through an end-run, relying on the limited objection of a previous owner who subsequently elected not to pursue such a course. After all, the value of a historic resource and its overall contribution to a community does not lessen when contemporary development pressures create incentives to develop that may have not existed when a resource is designated.

In a land use scheme that many argue is overly complicated and convoluted, it is interesting to note that historic preservation has very little (arguably a single, relatively clear statutory standard) governing the protection from this case that will have a demonstrable impact on preservation efforts throughout the state.

In the first of these cases, Demlow v. City of Hillsboro, LUBA narrowed the removal exception to those cases where the historic designation was “imposed on the property.” Now, LUBA has narrowed the exception further to the current owners who object. This is a narrow exception indeed. Now we will wait to see if the Court of Appeals is asked to review, or if the Legislature decides to enlarge or alter the standard.

Note: Garvey Schubert Barer represents the city of Lake Oswego in some limited matters unrelated to this case.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-553-3106 or at esullivan@gsblaw.com.

Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at crichter@gsblaw.com.

The post OP-ED: In Oregon, the old house gains new life appeared first on Daily Journal of Commerce.

The United States Supreme Court, at the end of its term in June, handed down in Burwell v. Hobby Lobby Stores Inc. a 5-4 decision that dealt a setback to implementation of the Affordable Care Act (also known as Obamacare). The decision found closely held, for-profit corporations to be “persons” able to assert another federal law – i.e., the Religious Freedom Restoration Act (RFRA) – requiring a higher level of judicial review that may restrict federal regulations imposing obligations. In this case the federal regulations required employers to provide their female employees with no-cost access to contraception.

Whatever one thinks of this result, there are other implications that the Hobby Lobby ruling might have in the land use field.

The owners of Hobby Lobby were Christians who believe that life begins at conception. The Department of Justice contended that corporations are not “persons” who may engage in the “exercise of religion,” and thus seek RFRA protections. The majority opinion by Justice Samuel Alito reasoned that the Dictionary Act defines word “person” as including for-profit corporations. Moreover, the court accepted the argument that furthering religious autonomy of for-profit corporations serves to further individual religious freedom as well.

RFRA does not prohibit laws and regulations that would have an adverse effect on religious practices; however, it does make such regulations more difficult to promulgate by requiring both a compelling governmental interest to do so and a showing that the least-restrictive-means are used.

Even if the federal government could prove that there was a compelling governmental interest in providing women with cost-free access to four challenged contraceptive methods, the court found the government had not shown why it could not assume the costs of such methods, or why an accommodation afforded to for-profit organizations with religious objections would fail to protect asserted needs of women as effectively as a coverage mandate.

RFRA has been succeeded in the land use context by the Religious Land Use and Institutionalized Persons Act (RLUIPA). Among other things, RLUIPA prohibits imposition or implementation of a land use regulation in a manner that imposes a substantial burden on the religious exercise of a “person.” In such cases, the regulation may be upheld only if the public agency shows a “compelling governmental interest” and uses the “least restrictive means” of achieving that interest. RLUIPA does not define “person;” however, the Department of Justice has used the term to include only “individuals, religious assemblies and institutions.” The Hobby Lobby ruling thus expands this term.

It wasn’t as if the court wasn’t warned. An amicus curiae brief of the National League of Cities said, “To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would ‘dramatically expand the statute’s reach’ and deeply intrude on local prerogatives, contrary to Congress’ intent.”

Justice Ruth Bader Ginsburg’s dissent agreed and noted the potential application of RLUIPA to land use regulations applied to religious uses. In other words, RLUIPA protections could run to any for-profit entity that claims a religious objection to a land use requirement.

One doesn’t need to have special expertise in land use law to think of the anomalies that this application might create. Individual regulations on signs, setbacks, parking and other matters could be challenged as not meeting the strict scrutiny tests to justify their inclusion in a zoning code.

Moreover, individual conditions imposed on a variance or conditional use permit must meet those standards as well and may lack justification in that they require highly discretionary decision-making driven by the facts. The world indeed would be turned upside down.

Even more troubling is the trigger for this analysis – it need be only a deeply held religious (or perhaps ethical) consideration that would transform a zoning, subdivision, design or other land use regulation into an analysis of whether the regulation were needed at all and whether there were a less-restrictive alternative. Those people who know the world of environmental impact statements can appreciate the fertile field for speculation and litigation that would result.

Time will tell whether the Supreme Court will continue its result-based orientation favoring religion. Justice Antonin Scalia, who once abjured separate treatment of religious uses, joined the majority in the Hobby Lobby decision. Perhaps the prospect of undoing zoning laws may cause him to take a different approach. However, ideology appears to have a stronger position than practical consistency on this court.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-553-3106 or at esullivan@gsblaw.com.

Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at crichter@gsblaw.com.

The post OP-ED: Religious grounds for avoiding land use laws appeared first on Daily Journal of Commerce.

Last September, the comment period closed for a federal Department of Housing and Urban Development proposed rule. That rule portends a very different course in the expectations of state and local governments in regard to affordable housing.

While retaining the prohibitions on housing discrimination, the new rule (now being reviewed by the Office of Management and Budget) requires proactive steps “to address significant disparities in access to community assets, to overcome segregated living patterns and support and promote integrated communities, to end racially and ethnically concentrated areas of poverty, and to foster and maintain compliance with civil rights and fair housing laws.”

Most local governments take federal money for housing or urban development, which implicates the new rules. Those dollars take the form of loan guarantees, urban renewal grants, homelessness programs, disaster relief, transportation and other infrastructure funds and a variety of other means.

A state or local grantee is “required to submit a certification that it will affirmatively further fair housing (AFFH), which means that it will: 1, conduct an analysis to identify impediments to fair housing choice within the jurisdiction; 2, take appropriate actions to overcome the effects of any impediments identified through that analysis; and 3, maintain records reflecting the analysis and actions in this regard.” The AFFH obligation extends to all housing and housing-related activities in the grantee’s jurisdictional area whether publicly or privately funded.

One effect of the new rule, which is likely to be challenged in federal courts, is that housing issues will not be treated in isolation, but in a relationship with other drivers of urban development. Thus, the connections between affordable housing and transportation or zoning, community expenditures in public services and facilities, racial or ethnic segregation and residency preferences or requirements are relevant issues for analysis and action.

Potentially, the new rule is not another effort at paper shuffling to deal with housing needs. Receipt of federal housing dollars requires repeated AFFH certifications of compliance with the analysis, action and records obligations noted above. The rule requires action to deal with problems identified, in part, by the use of uniform data. A state or local government may thus be sued for doing nothing in the face of an identified problem. Moreover, for those public agencies that certify compliance and do nothing or that support efforts to thwart affordable housing, litigation may be brought under the False Claims Act. And if the AFFH certifications were false, treble damages and attorney fees may be awarded, with a possible share going to a “relator” – one who “blows the whistle” on a noncomplying government.

The case of Westchester County, N.Y., though brought under current law, is instructive. Although certifying that it was affirmatively furthering fair housing when it received over $52 million in federal grants over the years, the county did not consider race-based impediments to fair housing choice even though it was part of one of the most segregated regions in the country. The county made no mention of housing discrimination or residential segregation and was successfully sued by a nonprofit activist organization under the False Claims Act.

The federal government joined the suit and a settlement was ultimately reached under which 750 affordable housing units must be built within seven years in the “whitest” neighborhoods of the county, the county must return $30 million to HUD because of its false certifications, $21.6 million of which was to fund integrative units (supplemented by $30 million more from the county), which was also required to pay $7.5 million to the “relator” for ferreting out false claims and another $2.5 million in attorney fees and costs. While the racial overtones of the county’s actions were extreme, the new rule raises the bar for reporting, actions and records required of state and local governments in housing matters.

Because the new rule does not depend on federal funding for enforcement, it is likely that nonprofit affordable housing organizations will follow the lead of their environmental brethren to undertake enforcement activity, using the “bounty” provided by the False Claims Act and Civil Rights Act to fund further enforcement.

If the rule is enacted and survives OMB review and court challenges, the national housing picture will be much different indeed. In Oregon, the new rule may spell the end of the statutory provision against inclusionary zoning and Metro’s prohibition on forcing higher densities in existing neighborhoods. We all may be in for a very bumpy ride indeed.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-553-3106 or at esullivan@gsblaw.com.

Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at crichter@gsblaw.com.

The post OP-ED: Affirmatively furthering fair housing appeared first on Daily Journal of Commerce.

Land use regulation is primarily accomplished through the application of local government-adopted plans and regulations. Oftentimes, application of these local standards requires interpretation – for example, identifying the location of a steep slope or determining whether a particular use is compatible.

The standard that Oregon courts and the Land Use Board of Appeals use for evaluating the correctness of local government interpretations has been to give some deference; however, predicting when to defer and how much deference is due has proven more difficult, especially since the standard seems to change continuously.

The rationale for giving deference is that the elected body charged with creating the plan or regulation is in the best position to interpret it. From this premise, LUBA and the courts give no deference to planning commission, hearings officer and staff decisions.

The first test for reviewing a local government interpretation was that it would be affirmed unless it was inconsistent with express language of the ordinance or its apparent purpose or policy. This was known as the “clearly wrong” standard. A state law articulating LUBA’s scope of review followed.

In general, a local government interpretation must be affirmed unless it is inconsistent with the express language, the context of the provision or the purpose or policy upon which it is based. This standard required the court to look behind the interpretation itself and if some support existed, then affirm. This anything goes approach set the bar for affirming decisions so low that almost any interpretation would likely be affirmed.

In 2009, the Oregon Supreme Court further opined that where two interpretations comply with the law, the courts and LUBA will affirm any local interpretation that is “plausible.” One might expect that, given the frequency that these types of questions come up coupled with an extraordinary low plausibility threshold, that LUBA’s scope of review would be predictable. But it turns out that finding the line where plausibility prevails over areas where the language appears to conflict either internally or with other policies has proven to be anything but banal.

Last month, in Friends of the Hood River Waterfront v. City of Hood River, the Court of Appeals considered whether LUBA erred when it rejected as implausible the city’s interpretation of certain provisions of its comprehensive plan addressing development in flood hazard areas and remanded the case to the city to apply those provisions by requiring the mapping of the flood areas.

The applicant sought a conditional use permit to locate an office building and hotel in an area within the 100-year floodplain that was not designated within the city’s floodplain (FP) overlay zone. One of the applicable comprehensive plan policies prohibited locating structures “within a flood hazard area unless the structure or the area meets the criteria set forth in the ‘FP’ overlay zone.” The city interpreted this plan policy not to apply to the proposal because the phrase “flood hazard area” in the policy meant an “area within the ‘FP’ zone” and as such, this policy did not apply.

The court agreed with LUBA that the city’s interpretation was inconsistent with the plain text that the provision applied to structures in any flood hazard area. The court further agreed that the city’s interpretation added an additional limitation – “those areas within the ‘FP’ overlay” does not appear in the plan provision. The court found that by restricting application of this policy to areas already designed within the ‘FP’ area would make the provision a nullity because areas designated ‘FP’ were expressly subject to the additional regulations.

The city argued that LUBA was required to accept the city’s interpretation because the interpretation represented a ‘considered determination’ that was necessary to harmonize a conflict between the FP overlay regulations in the comprehensive plan and the flood hazard regulations in the local code. The court rejected this finding language elsewhere in the city’s decision suggesting that the two different regulatory documents could work in tandem such that the ‘FP’ overlay designated areas were only a “subset” of the lands that were regulated by the code.

Notwithstanding the court’s agreement with LUBA regarding the city’s interpretation of the plan policy, the court reversed LUBA’s identification of the solution – requiring that the applicant map the location of the 100-year floodplain. The policy required the identification of the 100-year floodplain, but LUBA went too far by not affirming the city’s plausible interpretation that the identification must take the form of a map. Although it is not clear what other types of identification might suffice, presumably a legal description or other narrative would suffice.

This case illustrates how this seemingly low standard of review – requiring simple “plausibility” for affirming local government interpretation still allows courts to conduct a searching review. Not only must an interpretation be consistent with the ordinary language as identified by the court, it must also be internally consistent not only with other regulatory provisions, but also with the way it is discussed within the decision findings. In a sense, this is a plausibility standard, but only so long as LUBA or an appellate court finds that it is also correct.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-553-3106 or at esullivan@gsblaw.com.

Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at crichter@gsblaw.com.

The post OP-ED: Finding meaning in LUBA’s review of cities’ interpretations appeared first on Daily Journal of Commerce.

The train of events from the release of the Oregon Court of Appeals decision in the Metro urban and rural reserves case to the resolution of that case in the Oregon Legislature has been an interesting one to follow. The Court of Appeals remanded a decision that followed four years of public hearings and actions to establish urban and rural reserves in the Portland area. Following various stages of shock, denial and anger, the development community, Metro and Portland-area governments changed their positions from considering the problem strictly regional and not open to legislative participation, to inviting legislative involvement.

The Legislature, in enacting the resolution of this case via the so-called “Grand Bargain,” imposed a solution in one particularly contested part of the region – Washington County – rather than have the reserves decision reconsidered as the court had commanded. Other deficiencies in Multnomah and Clackamas counties were left for the Land Conservation and Development Commission (LCDC), those counties and the region to sort out.

Within days, the Legislature expanded the urban growth boundary (UGB), as well as the urban and rural reserves in Washington County, and declared victory to the applause of much of the development and business community and local governments.

Expanding the UGB is important, because urban-type development is allowed only within that boundary and significantly affects the price of real estate. Similarly, placing land in an urban reserve presumptively puts that land first in line for addition to the existing UGB for urban development over a 50-year period. And placing land in a rural reserve makes it likely that such land will not urbanize over the next 50 years.

The Legislature, local and regional governments, and public interest groups characterized these actions as nothing more than a mediated settlement with the parties to the lawsuit resulting in an outcome that was consistent with initial predictions. This does not change the fact that it was the legislators, rather than local governments, drawing colored lines on a map. Often these supplicants and the legislative leaders will assert that the UGB and reserves processes are just too complex and need to be simplified. Yet these parties might consider their own roles in shaping these processes.

Instead of providing a checklist of objective requirements for expanding the UGB, the Legislature left in place a system of unquantified “factors” to apply to give decision-makers the “flexibility” to reach whatever decision they wished. The Legislature and LCDC used a similar system of applying “factors” to the reserves process for the same reason.

In addition, instead of allowing the Land Use Board of Appeals (LUBA) to review these decisions, the Legislature specifically directed that review to LCDC, a government-friendly forum that did not work as hard to consider those pesky legal questions that occur in making land use decisions. Both left it to the Court of Appeals to weigh the reserves decision against the criteria, and were duly shocked and appalled with the result. It is far easier to blame the process and other participants than to fess up to admitting the source of the complexities in that process.

In reality, there was an attempt to game the process (through an assertion of “flexibility” designed to place a patina of respectability on the result) to justify putting certain lands over other lands into urban reserves than was justified, regardless of what the law said, because some of the participants wanted that result.

However, the real problem created by the “Grand Bargain” is the precedent it sets. While both the UGB and reserves processes are difficult (and are supposed to be difficult because the decisions are significant and long-lasting), on what basis can the Legislature turn down similar requests for imposition of a legislative solution in Woodburn, Bend or McMinnville? Will the watchdogs and the environmental community continue to be coy about the application of raw political power to make local planning decisions on the ground?

The quickest and easiest decision is not always the best one. The Legislature may yet rue the day it stepped in to impose its will in the reserves case. It will be difficult to deny the second supplicant, much less the third, fourth and others.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-553-3106 or at esullivan@gsblaw.com.

Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at crichter@gsblaw.com.

The post OP-ED: ‘Grand Bargain’ is a seductive solution appeared first on Daily Journal of Commerce.

Reserve designations for the Portland-metro region may soon be decided – for the moment at least.

State law provides for a consensus-built process at the local and regional levels to designate urban and rural reserves based on consideration of “factors” identifying sufficient lands to accommodate population and employment growth for the next 50 years that will also result in a balance that “best achieves” certain values. Public meetings to apply these rules dragged on for years, and the written record from those proceedings contained tens of thousands of pages.

At those meetings, participants like Save Helvetia and 1000 Friends of Oregon repeatedly asserted that Washington County did not apply the rural reserves correctly. They explained that the rural reserve factors did not include consideration of the availability of water or the extent to which lands had been parceled. The failure to apply the rural reserve factors properly allowed Washington County, with the help of the city of Hillsboro, to designate for urban reserves some of the highest quality farmland in the region.

As part of its mammoth, 126-page decision, the Court of Appeals reversed and remanded the reserves decision largely based on this mistake by Washington County. It found that consideration of a number of factors is required; these include soil quality, whether the land has a history of sustaining long-term agricultural activities, and whether the lands are threatened by urbanization.

Most of the farmland in question satisfied these rural reserve factors; however, Washington County, under pressure to find even more land able to be urbanized, created some additional “inexact surrogates” – what the court labeled “pseudo factors” – with which to distinguish such lands. The county also chose to use an outdated soils report over one more recently prepared by the Oregon Department of Agriculture that evaluated the suitability of soils and included consideration of irrigation rights. Washington County overreached. It was caught trying to reverse-engineer a system to achieve a desired result.

Now it appears that reserves will be determined by the Legislature, after a handful of negotiated meetings occurring over one weekend during which the consensus was built around a small number of development interests, land use watchdogs, and local government representatives. This “grand bargain,” known as House Bill 4078, was introduced initially by homebuilders asking that the Legislature expand the urban growth boundary consistent with efforts by the city of Hillsboro to do so, relying on the reserves decision, which was then on appeal.

In its latest iteration, HB 4078 designates urban and rural reserves, parcel by parcel and tax lot by tax lot. True understanding of the impact of this bill requires reference to a map, which was not available when we wrote this commentary.

Although the Legislature has a long-standing reputation for super-siting uses or creating one-off legislation to help particular landowners, this is one of the first times that the Legislature has gone so far as to apply zoning to multiple parcels. Again, this is certainly not the first foray of the Legislature into land use, but we should not be surprised when it turns out that this is also not the last time either.

These decisions raise some important considerations. First, in response to those who say that this process took too long, planning how we will grow over the next 50 years is a complicated and time-intensive process.

Second, using discretionary terms like “consider,” “factors,” “areas” and “balance” within the legislation requires a high level of explanation and articulation – and that resulted in the delay. We know now that although using such squishy words may make decision-making more politically palatable, that kind of drafting can also take just as long as a more rigid prioritization scheme.

Third, the Court of Appeals analysis is based largely on the legislative record created at the time of adoption of the reserves laws. If adopted, HB 4078, setting the course for Metro-area growth, will include very little in the way of legislative findings or explanation of why particular designations were imposed or how boundary expansions occurring after adoption occur.

Finally, neither the reserves process nor the court’s decision demonstrates that the Oregon land use system is “broken,” as improvidently characterized by a local newspaper. The failures were the products of bullheaded pride.

Some political leaders desired inclusion of certain lands regardless of the direction dictated by the process. Some planners were only too quick to accommodate. And some lawyers argued that the criteria were sufficiently flexible so that just about any decision would pass muster.

While the use of factors, rather than criteria, and the proliferation of inexact terms made the court’s decision much later and longer than predicted, the court did not get it wrong. More importantly, the region did not get it right. Perhaps this experience may make the parties more cautious next time.

For the record, we represented Save Helvetia, a coalition of farmers, business owners, concerned citizens, neighbors and residents working to protect the Helvetia community and its neighboring agricultural lands.

Edward Sullivan is an owner in the Portland office of Garvey Schubert Barer. Contact him at 503-553-3106 or at esullivan@gsblaw.com.

Carrie Richter is an owner in the Portland office of Garvey Schubert Barer. Contact her at 503-553-3118 or at crichter@gsblaw.com.

The post OP-ED: Back to the future: the Metro reserves decision appeared first on Daily Journal of Commerce.