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Posts from November 2011.

In our July 8, 2011 post we wrote about new ordinances adopted in Umatilla County that severely limit where wind turbines can be constructed.  Property owners throughout the county have challenged the ordinances with an appeal at LUBA and oral argument is set for December 15th.  The tradeoff between green energy and aesthetics continues to be an ongoing debate in that locale.

Meanwhile, Sherman County has taken a different approach by embracing the development that captures the energy from gusts breezing through their backyards.  The Oregonian recently published the article, “Wind blows money into pockets of Sherman County residents,” describing the county’s decision to share the wealth when it comes to windfalls from turbine development (read the full article here.)  Although some community members may find the view of wind turbines less aesthetically pleasing than undeveloped high desert land, the county has attempted to give economic value to that impact. 

In the past decade, interest in rural events, such as weddings, reunions and other gatherings, have increased dramatically – who can resist romantic sunsets over golden fields, truly local, organic food and dinner under open skies? In a 2004 survey, the US Department of Agriculture determined that over 50,000 farms in the US were open to the public offering a variety of services, including weddings, picnics, hayrides and other events. However, those events have run into land use issues in Oregon. Oregon’s strong land use laws were driven in large part by the desire to keep productive farmland available for farming and the spike in farm weddings, events and other celebratory events has brought some tensions out in the open – should a farmer be able to make some extra money by renting his fields out a few times a year?

Historically, “bad boy” guaranties (or “springing recourse” guaranties) were triggered only by a borrower’s serious malfeasance, such as fraud, theft, or waste.  More recently, lenders have broadened the language of such guaranties to provide that they will also be triggered by a bankruptcy filing of the borrower, and as indicated by recent rulings in New York, courts are enforcing these guaranties.

Legal Issues For Planners  12.2.11

The APA has designed a dynamic 2011 workshop covering a variety of legal issues, featuring Oregon land use professionals from a variety of fields.

The regulatory saga of the West Linn Corporate Park appears to be over – the US Supreme Court issued an order today declining to review the 9th Circuit’s decision in the case largely putting an end to the litigation that began in 2001.  The order leaves in place the 9th Circuit’s unpublished opinion that affirmed in part, reversed and remanded in part and dismissed in part a Federal district court opinion.  The only issues still alive appear to be the requirement for the District Court to reapportion some attorney’s fees.

November 9, 2011, Ed Sullivan, Bill Kabeiseman, Carrie Richter and Jennifer Bragar presented materials to the Euclid Society about climate change policy and efforts to reduce green house gas emissions throughout Oregon.  The following is a list of resources if you are interested in digging deeper into this topic area.  We will post Oregon Shores Conservation Coalition’s White Paper, “Adapting to Climate Change on the Oregon Coast” as soon as it is published.

Is an arbitration clause in a commercial lease a good idea?  This question came up several times in the recent ICSC (International Conference of Shopping Centers) law conference that I attended last month with my GSB law partner, Rob Spitzer.  There are pros and cons to including an arbitration clause in a commercial lease.  Here are some things to consider. 

I participated in the ICSC (International Conference of Shopping Centers) Law Conference in Phoenix last month along with my GSB law partner, Joseph West, and was impressed with the high quality of the legal presentations and the aggregation  of industry talent of the attendees.   I anticipated seeing colleagues in private practice with experience representing landlords and tenants, but we were joined by the country’s major retailers and their in-house counsel, as well as shopping center leasing teams.   Quite often, the most interesting insights came from interactive seminars in which conference participants as well as presenters could share their own experience and knowledge with the group.   

Of the 12 assignment of error presented by opponents to the Columbia River Crossing in the case Weber Coastal Bells v. Metro, LUBA affirmed 11 of them – a resounding loss for opponents.  In its most significant ruling, LUBA found that approving a large proportion of highway improvementsColumbia River I-5 Bridge ca1920 along with light rail did not violate a 1996 state statute adopted to authorize a light rail project.  LUBA reasoned that the scope of the project under the statute includes “any highway improvements” that are described in the Draft or Final Environmental Impact Statement and these improvements need not be related, required by or connected to the siting of the rail line.  LUBA agreed with Metro and other respondents that the highway improvements were “associated” with the light rail component in that it could not have been approved if it did not include a highway component as well.

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