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Posts from December 2011.

On October 19, 2011 the Portland City Council approved a conditional use review that was the last land use hurdle to the offices of the Department of Homeland Security Administration (HSA) and its Immigration and Customs Enforcement Division’s (ICE) move to the South Waterfront. The decision was not appealed.

We represented the owner/developer of the property, which had submitted the successful proposal to provide new HSA/ICE office space in the South Waterfront. The proposal was to renovate and expand an existing underutilized building at the corner of Macadam and Bancroft in the South Waterfront district. The new facility will be 114,279 s.f. and house over 130 HSA and ICE employees.

The land use process began before the City’s Design Commission, with design review for the renovated/expanded building, which was considered a “major remodel.” As part of that process the issue of whether the facility was permitted in the South Waterfront was raised. There were neighborhood concerns that the ICE facility was not compatible with existing and planned South Waterfront improvements. Staff advised that the facility was an allowed use in the CXd zone, and that the Design Commission lacked authority to address whether the use was allowed. On appeal to the City Council of the Design Commission’s approval of the proposal, the issue of whether the use was allowed was raised with the focus on a small portion of the new facility where the detainees would be housed during the day as they were being processed. This area of the facility was approximately 5,198 s.f. and consisted of four holding rooms and support space used in holding and processing detainees. No detainee would be housed in the facility overnight, but, rather, detainees brought in during the day would be held in this area before being transported to the ICE detention facility in Tacoma every afternoon.

It was a rare and strange case that required a creative legal approach to prevent the tearing down of a recently-constructed house in bucolic Douglas County, Oregon. The case centered on a parcel of land purchased by Philip and Cynthia Bowes in 1995 and their subsequent efforts to build a home on that land 16 years later. The Bowes’ neighbors aggressively collaborated to file appeals of the County’s permission to build a house and subsequent extensions granted to delay construction at the Oregon Land Use Board of Appeals (“LUBA”). The Oregon State Court of Appeals issued two opinions in Jones v. Douglas County (Case Nos. A-148612 and A148618) ending the 18-month dispute involving construction of the home that had been opposed by neighbors.

American Electric Power Co., Inc. v. Connecticut, 131 S.Ct. 2527 (2011) involved Federal common law nuisance claims against the Tennessee Valley Authority and several private power companies emitting carbon dioxide and other greenhouse gasses, asking the federal courts to set caps and to reduce those amounts annually thereafter. The Supreme Court reversed the Second Circuit and determined that the Federal Clean Air Act displaced such claims.

I’m old enough to remember nasty “Restrictive Covenants” which were used in certain fancy neighborhoods to keep out people of certain disfavored racial, religious or ethnic groups. Fortunately, federal legislation outlawed those ugly rules, although as a dirt lawyer, I’ve occasionally found them when digging through an old title.

In that context, I read the recent decision of Division II of the Washington Court of Appeals in an almost refreshing light. In the case of Jensen v. Lake Jane Estates, No. 40947–0–II, decided November 22, 2011, the old specter of discrimination was not even present as the Court reflected on the salutary role that restrictive covenants now seem to play in so many Northwestern residential neighborhoods.

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