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Posts from August 2012.

TransCanada, a Canadian energy company has been granted eminent domain rights to take a 50 foot easement through a property owners farm in Texas. The issue before the local court was whether TransCanada had “common carrier” status for the Keystone XL project, which would allow it to use eminent domain to acquire property for the project when the property owner would not agree to grant an easement. The case highlights an unusual loop hole in the Texas law which simply allows a company to claim its status as a common carrier on a simple one page form to avail itself of condemnation authority.

The common carrier process has recently been challenged successfully in the State Supreme Court where the court refused the pipeline company’s condemnation claim. Texas Rice Land Partners v. Denbury Green.

"Private property is constitutionally protected," Justice Willett wrote, "and a private enterprise cannot acquire condemnation power merely by checking boxes on a one-page form."

Most states, including Oregon and Washington, have strict statutory provisions granting condemnation authority and procedures to establish just compensation for property acquired for a public use.

This has been a controversial project due to its scope and the type of product being disturbed through the pipeline. The pipeline project history can be viewed at here.

Free speech law is critically important for on premise sign regulation. Signs are an expressive form of free speech protected by the free speech clause of the Federal Constitution. Courts decide how local governments can regulate signs, including on premise signs, in order to ensure the principles of freedom of expression are observed. If free speech requirements are not met, courts will hold an on premise sign law unconstitutional.

The above quotation comes from Free Speech Law for On Premises Signs, by Daniel Mandelker (August 10, 2012). This quote reminds us of the importance of understanding the protections afforded to on premises signs by the First Amendment to the U.S. Constitution. Professor Mandelker, a friend of this blog, just completed and released his sign handbook comprehensively analyzing the interplay between the First Amendment’s free speech law and on premises signage. His sign handbook is a must-have resource for all land use and municipal lawyers and practitioners.

Professor Mandelker’s handbook begins by discussing U.S. Supreme Court cases that have decided the basic principles of free speech law, including the tests developed by the Court for regulating commercial speech. The book also explains the prior restraint doctrine that applies to the process in which decisions about the display of signs are made, including the standards that must be used to make these decisions. The handbook discusses basic issues concerning on premise sign ordinances, such as how a municipality can demonstrate that an ordinance advances its aesthetic and traffic safety objectives, the importance of a statement of purpose, how on premise signs should be defined, sign exemptions, and the treatment of on premise signs under the Federal Highway Beautification Act. The handbook reviews the law that applies to the different types of signs that can be displayed on premise, such as time and temperature signs, portable signs, and digital signs. Finally, the handbook discusses the regulations that apply to on premise signs, such as size, height, and spacing regulations.

You can download the book for free on the United States Sign Council site here, or at Professor Mandelker’s blog at


Bob Weaver and Adam Kelly of Garvey Schubert Barer recently obtained summary judgment in favor of Old Navy, LLC in the Oregon federal court enforcing the plain and unambiguous terms of the Co-Tenancy requirements of Old Navy’s retail lease. Notably, the Court held that that the Co-Tenancy requirements are conditions that must be satisfied in order to require Old Navy to operate at the mall and pay full rent. The Court also held that Old Navy’s contractual right to pay reduced rent during the period of a “Co-Tenancy Failure” is (1) not a liquidated damages provision as a matter of Oregon law, and (2) required a refund to Old Navy of the more than $550,000 in excess rent mistakenly paid during the Co-Tenancy Failure as a result of the landlord’s failure to provide notice of the Co-Tenancy Failure.

The Co-Tenancy requirements of Old Navy’s lease provide that if three of four identified retailers (“Key Stores”) are not operating their businesses at the shopping center (termed a “Co-Tenancy Failure”), Old Navy is entitled to pay “Alternate Rent” during the Co-Tenancy Failure period. The lease also provides for an express process by which the landlord can substitute a retailer for a departing Key Store for purposes of satisfying the Co-Tenancy requirements. That process requires the landlord to obtain Old Navy’s prior approval of the proposed substitute retailer. Landlord is only required to comply with the substitution process if it wants the substitute retailer to satisfy the Co-Tenancy requirements.

In WKN Chopin, LLC v. Umatilla County, LUBA reversed the county’s denial of a transmission line on EFU land intended to transmit energy from a new wind generation facility to the electrical grid. The county’s denial was based on a conclusion, under state law, ORS 215.295(2) and local code regulations, that there were alternatives to locating the line on EFU-zoned land and the applicant failed to establish that those alternatives were not feasible.

First, LUBA rejected intervenor’s claim that the use was more properly considered a "commercial utility facility for the purpose of generating power for public use by sale" under ORS 215.283(2)(g) when considered with the wind generation activity as opposed to “utility facility necessary for public services” under ORS 215.283(1)(c) as the County found. Not only was intervenor’s claim not properly preserved and was not raised as a cross-assignment of error challenging the county’s decision, a transmission line is a type of “utility facility” under ORS 215.276(1)(c) in any event.

Second, LUBA re-affirmed a long list of cases, most notably McCaw Communications, Inc. v. Marion County, 96 Or App 552, 556, 773 P2d 779 (1989), holding that an applicant for a utility facility necessary for public service is required to examine only non-EFU-zoned alternatives. An applicant need not examine multiple EFU-zoned alternatives and select the EFU zoned alternative that has the least impact on EFU-zoned land.

Third, local regulations requiring the consideration of alternatives and technological feasibility cannot be imposed on a use permitted under subsection (1) of ORS 215.283 as they are subject only to statutory standards under Brentmar v. Jackson County, 321 Or 481, 496, 900 P2d 1030 (1995), and otherwise they are deemed permitted outright.

A recent series of articles by the Oregonian highlights a significant failure on the part of local and regional governments in the Portland region in one area of governance in which both levels of government are responsible. The series, Locked Out: The Failure of Portland-Area Fair Housing can be found here, and is likely to be considered for several journalism awards. In one sense, the story was not very surprising to those familiar with affordable housing in the region. Most local governments, who deal with pledges to assist and not discriminate against such housing, have done very little to plan for and provide for such housing. And Metro, which should be assuring that affordable housing is provided, finds it much easier to tout such popular objectives as open space acquisition, freeways and the zoo, rather than deal with the grimy realities of doing so.

The series consisted of four articles. The first and second dealt with the result of the failure to support fair housing that lead to the concentration of those housing units that are subsidized in peripheral parts of the region, where residents tend to be further from public transit, from food and other commercial facilities, and from the upscale regional center. Part of this story, however, is the level of resistance the journalist faced when making public records requests to evaluate the problem. The Portland Housing Bureau, Home Forward (the Multnomah County housing agency) and the Clackamas County Housing Authority either resisted those requests (with Home Forward paying $15,000 in legal fees to do so) or gravely overestimated the amounts it would charge for records that arguably should be released without charge to a newspaper in the public interest. If that resistance were based on the potential embarrassment of an exposé that public agencies failed in their duties to further affordable housing, they were right. For the article concluded that there was a concentration of affordable housing in Portland east of 82nd Avenue and that dramatic demographic shifts of ethnic minorities had occurred. Irvington and other inner eastside neighborhoods had become “gentrified” over time, while racial minorities were increasing rapidly in Outer Southeast Portland.

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