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Posts from April 2013.

No matter your perspective on particular projects, there can be no question that the ability to finance and fund projects will continue to be a challenge.  One contracting method developed in part to address those kinds of concerns is referred to as P3, or public private partnership.  The P3 method allows major projects to move forward by combining both public and private funds.

Just four months into 2013, several P3 bridge projects have reached significant milestones.  In February of this year, the Ohio Department of Transportation selected three teams to provide P3 proposals for a new I-90 Innerbelt bridge – Ohio’s first use of the P3 method.  Just last week, the Port Authority of New York and New Jersey authorized the award of a $1.5 billion contract to the NYNJ Link Partnership for the replacement of the Goethals Bridge.

However, not all the news is of projects moving forward.  A proposed new bridge over the Knik Arm (the KAC or Knik Arm Crossing) in Anchorage, Alaska, hit a significant hurdle in the form of an audit prepared by the Alaska Joint Legislative Budget and Audit Committee.  That audit suggests the project may have significant feasibility concerns – including “unreasonably optimistic” toll and revenue projections – projections that are a key component to a successful P3 project.  Although KABATA, the Knik Arm Bridge and Toll Authority, disputes the audit, it is indicative of yet another challenge facing this potential project.

Similarly, the Columbia River Crossing – a new bridge for Interstate 5 connecting Portland, OR, to Vancouver, WA – has seen funding challenges so far this year.  Oregon passed necessary funding for its portion of the costs to construct a new bridge over the Columbia River for Interstate 5 relatively quickly.  Washington, however, was not so quick – and only last week came to a compromise that allows some of the funding to be issued, with much of it contingent on a USCG review.  Final construction financing is still not approved.

Major infrastructure plays an important role; it comes with a significant price tag.  While innovative methods have been developed to increase the financial feasibility of these projects, it is clear that additional education, study, and creativity is needed to continue moving toward development of successful projects that support the logistics of today’s economy.

Lupo v. Community Works Rhode Island Inc., et al., 2012 WL 6585 278 (RI), involved Plaintiff’s challenge to use and dimensional variances granted to Defendant Applicant.  The challenge was by declaratory judgment but the Superior Court affirmed both actions and plaintiff appealed.

The Supreme Court determined, based on Rhode Island precedent, that there was no appeal from the Superior Court judgment in zoning matters.  Rather, review was by writ of certiorari.  While the challenge below was brought by declaratory judgment, the basis for the controversy was a reviewable Zoning Board decision.  According to the court, the use of a declaratory judgment is not a means to bypass the statutory mechanism of the state to review superior court decisions in zoning matters.  Rather, a discretionary certiorari review was the sole basis for such a challenge.  Accordingly, the appeal was denied and dismissed.

This case shows the courts are particular about the means by which land use decisions may be reviewed.  While the declaratory judgment offers a means by which actions, which do not have appeal or review mechanisms, may be tested, that form of action is not a substitute for existing appeal or review mechanisms.

Lupo v. Community Works Rhode Island Inc., et al., 2012 WL 6585 278 (RI).

In Cosner v. Umatilla County (2012), the Land Use Board of Appeals overturned a series of Umatilla County ordinances adopted in 2011 to prevent several wind energy developments.  The main issues in the case involved the county’s compliance with Goal 5 and the constitutionality of 2-mile setbacks for wind turbines from certain uses and locations. LUBA found against the county on both assignments of error.

After the Cosner decision, the county adopted a new series of ordinances in 2012 that it believed would resolve the problems identified in Cosner.  Thereafter, Jim Hatley (also a party in Cosner) appealed the 2012 ordinances.  LUBA upheld the county’s new ordinances and Hatley appealed to the Oregon Court of Appeals.

On April 3, 2013, the Court reversed and remanded LUBA’s decision. Significantly, the Court held that Hatley did not waive his right to appeal the 2012 ordinances because he could have raised those issues in the original LUBA proceedings.  The Court distinguished between quasi-judicial decision making, where a strong “raise-it-or-waive-it” standard applies, and legislative decision making, where waiver does not apply.  In a quasi-judicial process the governing body is required to give notice of and apply a set of criteria within a fixed time-frame and to adopt a final decision.  In contrast, once LUBA overturned the 2011 ordinances, the county was not bound to take any action, but opted on its own to adopt two new ordinances.  Therefore, the public involvement process started anew.

On remand, LUBA will consider whether the county’s 2012 ordinances are preempted by state laws that encourage and govern renewable energy.

This decision is also likely to inform the legislative debate over House Bill 3362 that attempts to limit public participation in local legislative actions.  This bill comes from Eastern Oregon and the ongoing battles between the City of Bend, Deschutes County, and Central Oregon Landwatch.

Stay tune to both the legislative debate and LUBA’s treatment of Hatley v. Umatilla County on remand.

Oregon courts have a long-standing practice of giving deference to an agency's interpretation of its own administrative rule if the interpretation is “plausible” and not “inconsistent with the wording of the rule itself, or with the rule's context, or with any other source of law.” This type of broad deference is given not only to agencies in interpreting their own rules but also to local governments when applying their own land use plans and land use regulations. This approach seems to work well, especially in cases of local government interpretations, where the local government is an elected body and presumably can be voted out if their interpretations are viewed by the public to be inconsistent with adopted codes. Agencies, by contrast, are not elected but are typically run by governor-appointed commissions or boards. Deference to agency interpretations stems from a belief that the agency has knowledge of and will act to further the original intent of its own rules.

Similarly, the federal courts have historically treated federal agency interpretations of statutes and administrative rules with a great deal of deference. Again, under the same premise that so long as the interpretation is not inconsistent with the plain language of the rule, it is entitled to be affirmed. But a few weeks ago, in the case of Decker v. Northwest Environmental Defense Center, the Supreme Court indicated a change may be coming soon.

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