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Posts from January 2012.

On February 8th, 2012 Garvey Shubert Barer is hosting an event titled "Real Estate for Planners: What Planners Should Know About Real Estate Issues."

The discussion will be followed by a wine and cheese reception.

To find out more about the event please view here.

In its January 12, 2012 opinion in Bowers v. Whitman, the Ninth Circuit Court of Appeals concluded that the State of Oregon (and Jackson County) did not violate Plaintiffs' property rights under the takings, due process, and equal protection clauses of the United States Constitution when the State modified the remedies available under Ballot Measure 37 through the enactment of Ballot Measure 49 (now codified as ORS 195.300 to 195.336). The Court held that any potential property interest the Plaintiffs had for compensation or for a specific type of land use based on their Measure 37 waivers had not vested, and therefore was not protected by the Fifth and Fourteenth Amendments.

Many urban local governments in Oregon have adopted housing codes to regulate substandard housing. These local codes ensure that dwellings remain healthy and safe for habitation and authorize government planning or development managers to pursue enforcement remedies where nuisance conditions exist such as insufficient fire protection, lack of heating, unsanitary conditions or overcrowding. Enforcement activities include property inspections, mandatory abatement and improvements, and sometimes the evacuation or demolition of structures. Although often solely complaint driven and significantly hampered by budgetary constraints, these codes authorize local governments to pursue nuisance abatement programs as they deem appropriate.

A jury awarded the Modera Hotel $756,000 for diminution in value to the hotel property for TriMet’s action in closing an access onto the city street for expansion of its light rail through downtown Portland. The case is unusual because closure of an access by a condemning authority is usually considered to fall under the condemning authority’s “police power,” that is to promote public safety, and is not generally a constitutional taking that results in compensation to the property owner. However, the Hotel was able to rely on a city ordinance that provides that when a City or Mass Transit restricts the use of a street traffic lane adjacent to a commercial property the City or Mass Transit shall be liable for and pay the difference between the fair market value of the property prior to the restriction and after the restriction. The Court of Appeals affirmed the jury award.

Since the 1950s, urban renewal agencies (or “redevelopment agencies”) were authorized by legislative action and created to improve blighted conditions and form a funding source used to encourage local economic revitalization. As other government services lost their sources of funding by initiatives enacted to freeze property tax rates, such as Oregon’s Measure 5, limiting increases in property taxes for cities as well as for school district budgets, and by Measures 47 (1996) and 50 (1997) capping annual increases in property taxes to 3%, urban renewal agencies have been a target for charges of exacerbating the problem caused by an already reduced ability to raise taxes.

To carry out redevelopment plans, these agencies may acquire real property, dispose of property by lease or sale without public bidding, clear land and construct infrastructure necessary for building on project sites, and undertake certain improvements to other public facilities in the project area. While redevelopment agencies have used their powers in a wide variety of ways, in one common type of project the redevelopment agency buys and assembles parcels of land, builds or enhances the site’s infrastructure, and transfers the land to private parties on favorable terms for residential and/or commercial development.

The Washington State Supreme Court recently held in Edmonson v. Popchoi, 172 W2nd. 272 (2011) that a grantor of a statutory warranty deed cannot summarily settle an adverse title claim but must provide a good faith defense even though there may not be a viable defense for the claim.

In 2006, Kiss sold a parcel of land to Popchoi by statutory warranty deed. By statute, the deed contained the covenant that Kiss would defend Popchoi’s title. Popchoi discovered through a survey that a fence encroached by 165 square feet into the southern part of his new property. The neighbor to the south, Edmondson, sent a letter claiming that property by adverse possession. Popchoi tendered the defense of the claim to Kiss. Kiss conditionally accepted the tender subject however to his right to settle the claim. Kiss said that it would be less expensive to pay damages to Popchoi for the breach of the title covenant than to defend the lawsuit. Kiss’ tender was rejected and Popchoi engaged his own attorney to defend the lawsuit filed by Edmonson.

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