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Posts from December 2012.

The Urban Lawyer published Ed Sullivan and Jennifer Bragar’s law review article entitled, “Recent Developments in Comprehensive Planning.”  The article will be republished in January in a book entitled “At the Cutting Edge 2012.”  The introduction to the book has the following to say about this article:

“With ‘Recent Developments in Comprehensive Planning,’ Edward J. Sullivan and Jennifer Bragar, the dynamic duo from Garvey Schubert Barer in Portland, Oregon, are back again, writing under the same old plain-vanilla title that belies the great content and, appropriate for this volume, “cutting edge” insights. There is no better annual summary of the law in the critical area of comprehensive planning, and you will benefit from reading it. They conclude, after some 5,300 words of careful analysis, that “the increasing number of cases on plan amendments and interpretation over the last year all lead to the conclusion that the plan continues to gain credence in the development process.”

We hope you enjoy!

In November, we noted a pending US Supreme Court case, Arkansas Game and Fish Comm. v. United States, which involved continual but temporary flooding of the Arkansas Dave Donaldson Black River Wildlife Management Area, which allegedly reduced the timber harvest by 16 million board feet and disrupted the recreational use of that land. The trial court had found a taking but the Federal Circuit reversed, finding the temporary flooding was not a permanent or inevitably recurring situation and thus not a taking.

Since 1948, the US Corps of Engineers, owned and operated the Clearwater Dam about 115 miles upstream from the Management Area. The Corps uses a Water Control Manual to determine water release rates on a seasonal basis with planned deviations for agricultural, recreational and other purposes. In 1993, the Corps released the water more slowly in order to enable farmers to have a longer harvest season, but then released more water later, during the tree-growing season from April through October, resulting in more flooding over those months. From 1994 to 2000 similar deviations were authorized over Plaintiff’s objections. The Corps also considered, but abandoned, a permanent revision to the manual.

I previously wrote in this blog about an Oregon Supreme Court case that held certain terms of a letter of intent for the purchase of a shopping center to be binding on the parties, while other terms in the letter of intent were not binding. See Letters of Intent: Binding, Nonbinding or A Little of Both, posted December 29, 2010. Recently, the 9th Circuit had occasion to review a similar issue involving a letter of intent for a ground lease transaction. In First National Mortgage Company v. Federal Realty Investment Trust, 631 F. 3d 1058 (9th Cir. 2011), the 9th Circuit upheld a jury verdict that found a letter of intent for a ground lease to be a binding contract, even though the letter stated it was subject to the parties signing a formal agreement. The First National case is a reminder to all parties negotiating a purchase and sale, lease or other real estate transaction that unless a letter of intent unambiguously states it is intended to be non-binding, some or all of the terms of the letter could be found to be binding and enforceable.

In the First National case, Federal Realty and First National had in engaged in negotiations that included an exchange of several proposals concerning a ground lease transaction. Each of the proposal letters exchanged between the parties had detailed language stating that they were not binding. Ultimately, the parties signed a one page document titled “Final Proposal,” which included a “put” and a “call” option for a ten-year ground lease. The “Final Proposal” did not, however, include the same detailed language stating it was nonbinding as the earlier proposals. It did state that “the above terms are hereby accepted by the parties subject only to approval of the terms and conditions of a formal agreement.” No formal agreement was ever signed by the parties.

In the fall of 2011, a jury awarded David Hill Development $6.5 million against the City of Forest Grove for constitutional violations resulting from its delaying issuance of a final subdivision approval.  In October, 2012, responding to a motion for judgment notwithstanding the verdict, the judge largely upheld the jury’s decision, modifying it only with regard to the claim that obligations to make off-site improvements violated the Takings Clause. 

As an initial matter, the city argued that David Hill could not recover because the city was not the sole cause of the nine-month delay between the time of issuance of the preliminary and the final subdivision approvals.  The court disagreed, finding that the causation requirement for a Section 1983 claim for violation of constitutional rights requires only a showing of government delay, separate and apart from delays that may be attributable to other causes, that caused the loss.  In summarizing the evidence presented during trial, the judge found David Hill had a reasonable expectation that it would receive the final subdivision permit two-weeks after receiving preliminary approval and that the city’s conduct in not issuing the permit for none months, including stop work orders, caused the delay.

When was the last time you considered what your company’s “trade secrets” are and how crucial protecting them may be to the success of your business? Real estate brokers, developers, contractors, and others involved in competitive markets within the real estate industry have a variety of “secrets” and other confidential information concerning their business that have value because they are secret. Because a company’s “trade secrets” and other confidential information may be some of its most valuable assets, companies of all sizes should regularly assess their proprietary information to determine what information should be protected, and how to protect it.

To a business, a “trade secret” is typically defined as the secret, proprietary information and knowledge that is critical to its success. This is the foundation upon which businesses are built. Trade secrets include methods, formulas, and processes, customer lists, secret recipes, budgets, business plans, pricing and cost data, compilations of data, research and development, vendor pricing and so on. These assets provide great value to a business and in many cases may be a business’s greatest asset because the secret information and know-how is what allows a company to separate itself from the competition. They are also valuable to a competitor, and if and when trade secrets fall into the hands of a competitor, serious economic harm can result to the secret’s owner.

Defined by the law, a trade secret is information or knowledge that provides value to a business and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. In almost every state, the law protects trade secrets from being misappropriated, which includes obtaining, disclosing, or using trade secrets without the owner’s permission. When misappropriation occurs, a business may be entitled to a court order prohibiting other parties from using or disclosing the trade secrets, and may also be entitled to recover monetary damages caused to the business, including lost profits and/or the money made by the wrongdoer.

Next Tuesday the Euclid Society will be hosting a gathering  discussing the topic : You Say Tomato; I Say Tomahto: Strategies for Enhancing Planner / Attorney Collaboration.

The Euclid Society is an affiliation of land use planners, developers and consultants whose purpose is to share experiences and ideas relating to recent events and current trends in planning. To find out more about the society or to get involved e-mail:

For more information about other upcoming Garvey Schubert Barer events, click here.

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We regularly update clients about changes in real estate law and on industry trends. This includes briefing clients on legislative proposals in the federal tax, housing and other legal areas affecting their businesses. Staying current enables you to anticipate and prevent legal problems as well as capitalize on new developments.
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