Articles Posted in Zoning, Planning & Land Use

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The City of Eugene sued to collect from Comcast of Oregon II, Inc. (Comcast) a license fee that the city, acting under a municipal ordinance, imposes on companies providing “telecommunications services” over the city’s rights of way. Comcast did not dispute that it used the city’s rights of way to operate a cable system. However it objected to the city’s collection effort and argued that the license fee was either a tax barred by the Internet Tax Freedom Act (ITFA), or a franchise fee barred by the Cable Communications and Policy Act of 1984 (Cable Act). The city read those federal laws more narrowly and disputed Comcast’s interpretation. The trial court rejected Comcast’s arguments and granted summary judgment in favor of the city. The Court of Appeals affirmed. Finding no reversible error, the Supreme Court affirmed. View "City of Eugene v. Comcast of Oregon II, Inc." on Justia Law

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As part of a highway improvement project, plaintiff Oregon Department of Transportation (ODOT or the state), brought a condemnation action against defendant Alderwoods (Oregon), Inc., seeking to acquire "[a]ll abutter’s rights of access, if any," between defendant’s property and Highway 99W. The improvement project involved rebuilding the sidewalk along Highway 99W and eliminating two driveways that previously had allowed direct vehicular access from defendant’s property to the highway. Defendant’s property retained access to the highway, however, by means of two driveways onto a city street that ran perpendicular to and intersected the highway. Before trial, the state moved in limine to exclude as irrelevant evidence of any diminution in value of defendant’s property as a result of the loss of the two driveways. The trial court concluded that the elimination of those driveways had not effected a taking of defendant’s right of access to the highway and granted the state’s motion. The Court of Appeals affirmed. The Supreme Court agreed with the appellate court that there was no taking in this case, and affirmed. View "ODOT v. Alderwoods" on Justia Law

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At issue in this case was the lawfulness of a portion of the City of Portland's Willamette River Greenway Plan that regulates uses of industrial and other urban land along a portion of the Willamette River known as the "North Reach." Specifically, the issue was whether the City of Portland (city) had authority to regulate development within the North Reach. Petitioners represented various industrial interests within the affected area of the city's plan. They contended that the law permitted the city to regulate only "intensification" or "changes" to existing uses and otherwise does not permit the regulation of existing industrial or other urban uses or other changes to such uses within the North Reach. The Land Use Board of Appeals rejected that argument, and the Court of Appeals affirmed. Upon review, the Supreme Court likewise rejected petitioners' argument and affirmed the decision of the Court of Appeals. View "Gunderson, LLC v. City of Portland" on Justia Law

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Under section 6(6) of Ballot Measure 49 (2007), certain "owners" of property may file a claim to establish up to three home-site approvals, notwithstanding existing land use restrictions that would otherwise preclude such development. At issue in this case was the meaning of the term "owner" as it is used in that section. Specifically, the issue was whether the term includes a seller of property under a land sale contract who retains legal title to the property. The Court of Appeals concluded that, as the term is used in Ballot Measure 49, the term "owner" means only the purchaser of property under a land sale contract and does not include the seller of the property who retains title. Upon review, the Supreme Court reversed the Court of Appeals: "In short, there is no persuasive evidence that the voters intended the three categories of owners under ORS 195.300(18) to be mutually exclusive. To the contrary, the phrasing of that definition, along with other definitions in the same section, and other related provisions of the law make clear that those definitional components were intended to be inclusive." View "Burke v. Oregon" on Justia Law

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Petitioner Plaid Pantries, Inc. argued before the Supreme Court that the land use final order that Respondent Metro adopted after a remand from the Court did not comply with the applicable statutory standards. Metro and Respondent Tri-County Metropolitan Transit District of Oregon (TriMet) asserted that the land use final order was legally sufficient. The center of the dispute concerned the construction of one part of the South North MAX Light Rail Project. Plain Pantries and other parties challenged the land use final order before the Land Use Board of Appeals (LUBA). The parties made a number of arguments before LUBA, one of which was that Metro had exceeded its statutory authority in adopting the land use final order because the order purported to approve parts of the project that lay outside the Portland metropolitan urban growth boundary. Upon review, the Supreme Court found that Metro neither exceeded its authority not made any decision on the light rail route, associated facilities or highway improvements that was not supported by substantial evidence in the record. The Court affirmed the land use final order. View "Weber Coastal Bells v. Metro" on Justia Law

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Petitioners, Northeast Coalition of Neighborhoods and Coalition for a Livable Future, sought direct review under Oregon Laws 1996, chapter 12, of a decision by the Land Use Board of Appeals (LUBA) that affirmed in relevant part a land use final order by Respondent METRO. The land use final order at issue concerned the Columbia River Crossing Project, which (among other things) would extend a light rail line from Oregon to Washington. Petitioners contended Metro either exceeded its statutory authority in adopting the order or that its decisions in the order were not supported by substantial evidence. Respondents Metro and Tri-County Metropolitan Transit District of Oregon (TriMet) opposed the petition. Finding that Petitioners failed to show that METRO either exceeded its statutory authority or made a decision about the highway improvements that was not supported by substantial evidence on the whole record, the Supreme Court affirmed. View "Weber Coastal Bells v. METRO" on Justia Law

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The question before the Supreme Court in this case was whether a landowner holding a "Measure 37" waiver had a common law vested right to construct a residential subdivision that he had begun but not completed by the effective date of "Measure 49." Yamhill County found that the costs that the landowner had incurred were sufficient to establish a vested right to complete construction of the subdivision, and the circuit court upheld the county's decision on a writ of review. The Court of Appeals reversed the circuit court's judgment and remanded the case for further proceedings. The Court of Appeals started from the proposition that, in the context of Measure 49, a common law vested right turns primarily on the ratio between the costs that a landowner has incurred and the projected cost of the development. It reversed because the county had given too little weight to that factor. The Supreme Court allowed the landowner's petition for review to clarify the standard for determining when, in the context of Measure 49, a common law right to complete a development will vest. The Court then affirmed the Court of Appeals decision, although for different reasons than those stated in the Court of Appeals opinion. View "Friends of Yamhill County v. Board of Commissioners" on Justia Law