If, as expected, climate change and sea level rise become a bigger threat to private property in the 21st century, ancient doctrines about boundary changes, including accretion, reliction and avulsion will become increasingly important. On August 14, 2014, the Oregon Supreme Court explained its view of accretion in Sea River Properties, LLC v. Parks, 355 Or 831 (2014).
The case arose just north of Rockaway Beach along the Nehalem River and involved grants of land that went back over a century and a half. There was a complex geologic and factual background, but the question the court had to answer was who owned land that had generally built up west of the defendant’s land and north of the plaintiff’s land between the old bed of the Nehalem river (before the federal government built a jetty) and the ocean. The Oregon Supreme Court chose not to exercise its ability to re-weigh the facts and, relying on the facts found by the trial court, concluded that “accreted land belongs to the upland owner where the accretion began,” even if it eventually grows in front of the property of another.
In itself, this case is not particularly surprising or interesting, but, as climate change continues to affect our world, these cases will only become more common and it behooves practitioners to understand the application of the common law property doctrines involved in shifting boundary lines.
Last week in the case Lake Oswego Preservation Society v. City of Lake Oswego, LUBA gave a huge boost to the historic preservation community and the protection of local historic resources. ORS 197.772 is one of the few statutes regulating how local governments designate and protect historic resources. ORS 197.772(1) provides that where a property owner objects to any form of historic property designation, the local government must remove the designation. Subsection (3) of the same statute requires that the local government “allow a property owner” to remove a historic designation that was previously “imposed by the local government.” LUBA was asked to decide whether the term “property owner” is limited to the owner at the time that the designation was imposed or whether a person who becomes an owner after the designation was imposed, where the original owner objected to the designation, could also seek removal.
In 1990, the City of Lake Oswego designated the Carmen House, a historic farmhouse and barn, along with a number of other properties within the City’s historic landmark inventory. The property owners at the time, Wilmot and Gregg filed an objection to the designation. While the City’s decision was pending review before LUBA, a fire on the property destroyed the barn. The City’s decision was withdrawn for reconsideration and as a result, the Carmen House was designated without the additional acreage and without further objection. The Mary Caldwell Wilmot Trust, the current owner of the property, sought to remove the Carman House’s historic designation under ORS 197.772(3). The City Council granted the request to remove the historic designation concluding that the term “property owner” is not limited to the owner at the time the property was designated. The neighbors appealed that decision to LUBA.
LUBA began its analysis by focusing on the text and context of ORS 197.772(3). LUBA found the text of the provision not terribly helpful because adding a phrase to limit qualifying property owners to those who made the initial objection would insert language into the provision just as including post-designation subsequent purchasers would also insert language, contrary to a law governing statutory construction. Moving to the context, LUBA found the use of the same phrase, “a property owner” in both subsection (1) and (3) of the statute suggests that the two phrases have the same meaning and refer to the initial objecting property owner. However, LUBA also noted that these two provisions have “different, non-overlapping circumstances that occur at different times,” suggesting an intent to describe different owners because the two categories are “mutually exclusive.”
What tipped the scales for LUBA was legislative history indicating that the purpose of subsection (3) was to allow property owners who “have been coerced into the historic property designation” to petition for removal. When one of the legislators was asked whether a person who bought a piece of property that had a historic designation could seek to remove it, the response was “[w]e haven’t thought about that situation.” A proposed amendment was offered that in cases where a local government designation occurs with concurrence from the local government, the obligation “runs with the land.” LUBA found that “taken together,” subsection (3) and the proposed amendment would treat subsequent owners the same as the original owner. If the designation was imposed over an objection, then a subsequent owner could request removal and conversely, if the initial owner consented, the subsequent property owner could not request removal. This “run with the land” amendment was removed before final adoption. Without any discussion explaining why the amendment was deleted, LUBA concluded that elimination of the additional language that would have put “subsequent owners on the same footing as the property owner” provides the “strongest inference” that the legislature did not intend this result. From this analysis, LUBA concluded that, although it is “a close question,” the legislature did not intend for the term “property owner” to include person who become owners of property after it is designated and the City erred in removing the designation based on ORS 197.772(3).
LUBA’s decision went on to find that a property owner’s failure to continually raise the objection through later stages of a proceeding does not mean that the owner withdrew the objection or implicitly consented to the designation. LUBA found that although Wilmot did not object to the subsequent designation of just the Carman House, Wilmot did not withdraw his previous objections.
LUBA’s decision makes sense from a policy perspective. Once a historic inventory designation is in place, subsequent buyers, who are presumably aware of the designation, should be assumed to have bought the designation along with all of the obligations that come with it. Removal of the designation is still possible through Goal 5 and its implementing rules, but not through an end-run, relying on the limited objection of a previous owner who subsequently elected not to pursue such a course. After all, the value of a historic resource and its overall contribution to a community does not lessen when contemporary development pressures create incentives to develop that may have not existed when a resource is designated.
In a land use scheme that many argue is overly complicated and convoluted, it is interesting to note that historic preservation has very little, arguably a single relatively clear statutory standard, governing the protection has resulted in this case that will have a demonstrable impact on preservation efforts throughout the state. The first of these cases, Demlow v. City of Hillsboro, LUBA narrowed the removal exception to those cases where the historic designation was “imposed on the property”. Now, LUBA has narrowed the exception further to the current owners that object. This is a narrow exception indeed. Now we will wait to see if the Court of Appeals is asked to review or if the legislature decides to enlarge or alter the standard.
Note: This firm represents the City of Lake Oswego in some limited matters unrelated to this case.
The American Bar Association State and Local Government Section has honored Edward J. Sullivan with the Jefferson Fordham Lifetime Achievement Award.
Ed Sullivan’s distinguished legal career spans 45 years and has had significant impact on Land Use law in Oregon. Throughout his career, he has championed sound land use planning, the provision of affordable housing opportunities, and the protection and preservation of resource lands throughout Oregon and beyond.
Carrie Richter, co-chair of the Garvey Schubert Barer Land Use Group with Ed Sullivan, and his colleague for the past 10 years, said, “Ed's accomplishments speak for themselves. He has shaped the Oregon land use system, starting with his influence on the seminal Senate Bill 100 drafting and adoption, taken land use battles to the United States Supreme Court, and proposed innovative approaches to ensure that sufficient urban land is available for affordable housing development.”
Ed Sullivan’s accomplishments have included work with major landmark cases in the history of Oregon State Land Use Law. The most notable cases that Ed has been involved in are Fasano v. Washington County Board of County Commissioners, and Baker v. City of Milwaukie. Both are Oregon Supreme Court cases that uphold the necessity to guarantee fair, reviewable and predictable decision-making in Oregon land use.
Before entering private practice, Ed worked for the then governor of the State of Oregon, Robert W. Straub.
According to Dwight H. Merriam, FAICP, attorney with the Hartford, Connecticut-based law firm, Robinson & Cole, “Ed has represented developers, property owners, governments, individuals, and many advocacy groups. His writings, teaching and lecturing reflect his synoptic and inclusive view of what land-use law and the Rule of Law mean for all stakeholders, and importantly, for those who are disenfranchised in the decision-making process, and for generations not yet born.”
Within the land use law community, education regarding comprehensive and coordinated land use planning is of the utmost importance. Over the past 25 years, Ed has taught land use planning law to planners and law students at Lewis and Clark Law School, Willamette University College of Law, and Portland State University. He speaks on a variety of land use planning topics all over the world. His most recent presentations include a discussion of urban grown boundaries at the Planning Law and Property Rights conference in Israel, as well as speaking engagements in Athens, Greece and Sydney, Australia.
Ben Griffith, Attorney with the Cleveland, Mississippi-based law firm, Griffith & Griffith, noted that “Ed has generously given his time, expertise and desire to advance and improve this vital component of the rule of law, through participation in scores of international conferences and symposia from the Pacific Rim, The Peoples Republic of China, and Australia to Eurasia, Eastern and Central Europe, the nations comprising the European Union and beyond. A born educator, advocate and counselor, Ed has inspired a younger generation of land use specialists to take on the mantle of public advocacy and public sector leadership, while maintaining a balanced perspective that is evidenced in his law firm, countless community contributions and personal friendships that span the globe.”
Ed Sullivan has published hundreds of articles and commentaries in everything from academic journals and legal industry trade publications, such as the Urban Lawyer, to many newspapers and community newsletters. His publications include a series of articles tracking the history of land use values in Oregon, which are encyclopedic in depth and cover experiential-based explanations of efforts to preserve farmlands, forest lands, and to still provide public infrastructure. He also tracks, and annually publishes an article exploring the role that the comprehensive plan plays in governing local government decisions for the American Bar Association. Due to the combination of his law practice, his teaching and many publications, Ed Sullivan is widely held to be an expert in his field, and is often the first person lawyers and planners rely on for counsel.
For over four decades, Ed Sullivan has dedicated himself to the Oregon State Bar and has served as the editor of the Oregon State Bar Land Use publication. He has also served as an associate editor of the Real Estate and Land Use Digest, the bi-monthly summary of land use cases and other real estate and land use developments for the Oregon State Bar. His many accomplish-ments include advocating for affordable and disabled housing; he founded, and is the past chair of, the Housing Land Advocates, dedicated to ensuring that land is available for the construction of affordable housing
Long known to be a mentor to law students, an educator to the legal community and to the public, he has been an advocate to many and has dedicated his career to serving the community with the highest standards of professionalism, integrity and commitment.
Patricia E. Salkin, Dean of Touro College’s Jacob D. Fuchsberg Law Center, said, “On a more personal level, throughout his career Ed has been a gracious mentor. As a long-time leader within the ABA State and Local Government Law Section, Ed has encouraged and supported my active involvement. He has brought other young lawyers - men and women - into the State and Local Section, and as a result, he is responsible in part for a healthy, sustainable future of the State and Local Government Law Section. Ed is a busy family man, a focused and successful lawyer, and an inquisitive person who has done much to advance the field of state and local government law. I can think of no one more deserving of the Jefferson Fordham Lifetime Achievement Award than Edward J. Sullivan.”
Jennifer Bragar, Ed's colleague at Garvey Schubert Barer, said, “Ed Sullivan’s professional life has so overlapped with his personal commitment to excellence and public service that even this award fails to capture the magical quality and love of the law he bestows on those he works with, collaborates with and teaches.”
Ed Sullivan has touched the lives of so many and yet he attributes much of the support he gets from his family, his wife Patte, his four children and seven grandchildren.
Southampton Day Camp Realty, LLC v. Gormon, 2014 WL 2871806 (App. Div., NY) involved the appeal of a decision by the Chief Building Inspector of the Town of Southampton that a nonconforming tennis and racquet club could be converted into a children’s day camp without a variance. Defendants were neighbors who opposed that conversion without a variance and appealed the Chief Inspector’s decision to the Board of Zoning appeals. Defendants also distributed a flyer which suggested that Plaintiffs did not care about the environmental effects of the conversion and had lied to town officials. Plaintiffs then sued Defendants for defamation. Defendants moved to dismiss the suit, contending that the action constituted a Strategic Lawsuit Against Public Participation (“SLAPP”) suit and sought dismissal, attorneys’ fees and punitive damages. Before discovery, Defendants moved for summary judgment on their complaint and the counterclaim. The Trial Court dismissed the complaint and awarded attorneys’ fees, but denied Defendant’s request for punitive damages. Both parties appealed.
The Appellate Division noted that New York’s SLAPP Suit litigation entitles a qualified defendant to dismissal, as well as attorneys’ fees and costs. A plaintiff must demonstrate that the lawsuit has a “substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law.” Defendants demonstrated that Plaintiffs were permit applicants and their communication was “materially related” to their efforts to report or comment upon, or oppose, this application and the communication was part of an effort to garner support for their opposition.
The Appellate Division ag
Tuccio v. Central Pine Barrens Joint Planning & Policy Commission, 113 A.D.3d 693, 978 N.Y.S.2d 350 (2014) involved a declaratory judgment proceeding in which the Petitioner contested an award of 18.46 Pine Barrens Credits to his property, instead seeking 50.42 Pine Barrens Credits and appealing from the dismissal of the proceedings in the lower court. The Pine Barrens Credits program allocates transferable development rights to owners of property located within the “core preservation area” of the Central Pine Barrens in Long Island under the Long Island Pine Barrens Protection Act (the “Act”).
Initially, the Pine Barrens Commission denied Petitioners’ request for any Pine Barrens Credits, finding that there was no justification for any credits under the Act. Petitioners then brought a declaratory judgment proceeding seeking the 50.42 Pine Barrens Credits asserted to be owed under the Act. In the first iteration of this case, the Appellate Court determined there was no clear legal right to the 50.42 Pine Barrens Credits but there were other factors in the allocation formula so that some credits were available. On remand, the Commission determined that only 20% of the property could have been developed under the local zoning code and, acting as the clearinghouse, the Commission determined that 18.46 Pine Barrens Credits should be allocated. Petitioner again sought declaratory relief but the trial court denied relief and petitioner again appealed from the dismissal of their declaratory judgment petition.
The Court determined that the law of the case doctrine precluded a request for the 50.42 Pine Barrens Credits and that the Commission acted consistently with the appellate court directive and thus affirmed the Commission’s decision. Implicitly, the appellate court agreed that the amount of the credits was related to the intensity of allowable development.
This case presents another aspect of the “law of the case” doctrine and also appears to limit transferrable development rights solely to compensate a land owner for actual, rather than speculative, lost development opportunities.
Tuccio v. Central Pine Barrens Joint Planning & Policy Commission, 113 A.D.3d 693, 978 N.Y.S.2d 350 (2014).
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