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Posts from March 2011.

Senate Bill 766 has featured prominently in the press recently.  It is a priority bill for the Governor and for some segments of the real estate and business community, particularly those who are frustrated by the Portland North Reach Plan because of the environmental and fiscal exactions placed on industrial development which they view to be a disincentive for job growth.

In Miles Christi Religious Order v. Township of Northville, 2010 WL 5151645 (C.A. 6th Cir. 12/21/2010), members of the Miles Christi Order resided in a five-bedroom home and conducted private daily masses in a small eighteen-person chapel in a residential neighborhood.   In response to neighbor complaints about traffic and parking, township planners required that Miles Christi obtain site plan approval establishing sufficient parking and landscaping or seek a variance to the same.  Failing to respond to the township request, an enforcement action was filed. 

Sharon Dunn v City of Milwaukie, Court of Appeals, A139386, February 23, 2011-  City of Milwaukie appealed a judgment awarding a homeowner $58,000 in just compensation when her home was damaged after raw sewage spewed from the toilets and faucets as a result of City workers performing maintenance by blasting water into the sewer line to clean the lines. The homeowner had sewer water dripping from her ceilings and flowing over the floor after the cleaning of the sewer lines in her neighborhood. The homeowner sued the City for the damages to her home claiming that the City inversely condemned, or had taken her property, when the sewer water entered her home and caused damages to the fair market value of her home.  The Court of Appeals reviewed the inverse condemnation claim and applied the test of whether the City’s actions had substantially interfered with the use and enjoyment of her property.  The proper test was whether the use and enjoyment was sufficiently direct, sufficiently peculiar and of sufficient magnitude to support the conclusion that the interference had reduced the fair market value of the home.  The question on Appeal included if the jury instructions had sufficiently addressed, as an element of the inverse claim, that the government intended to have taken the property by its actions.  The Court of Appeals held that homeowner had presented a legally sufficient claim of inverse condemnation and the jury had been properly instructed on the law.

The U.S. Supreme Court’s decision in Kelo v. City of New London and its aftermath is the subject of a very interesting commentary in the February issue of the Planning & Environmental Law Journal, entitled “All Sound, No Fury? The Impacts of State Based Kelo Laws,” by Harvey M. Jacobs, a professor at the University of Wisconsin-Madison and Ellen M. Bassett, an assistant professor in the School of Urban Studies at Portland State University. 

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