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In Walter v. City of Eugene, (LUBA No. 2106-024, June 30, 2016), the applicant appealed the City’s planning commission decision to deny an application for a planned development of a ten-lot subdivision with an additional lot left as open space. Land surrounding the subject site had been purchased by the City in 2014 to maintain as a natural area and part of a trail system, which would prevent the developer from extending a local road to the subdivision. Instead, the development relies on a proposed shared driveway.  A hearings officer reviewed the proposal and denied the application under the local planned unit development (PUD) code that requires the street layout of the PUD to disperse motor vehicle traffic onto more than one public local street. The planning commission affirmed the hearings officer’s decision.

I-Stock City Council Meeting RoomWoody’s Group, Inc. v. City of Newport Beach, 2015 WL 367448 (Cal. App.), involved approval by the City’s planning commission of plaintiff’s changes to its restaurant, including a covered outdoor patio, inside dancing and extended opening hours on weekends.  The restaurant was located in a “trendy marine area that includes a number of restaurants.”  City Councilor Mike Henn filed an “official request to appeal” by email to the city clerk, citing his “strong belief” that the approval was inconsistent with the character of the area and in violation of the city’s plan.  The appeal did not meet the requirements of the city code and was not accompanied by an appeal fee (which in this case would have been $4100).  At the next Council meeting, the Council heard testimony in support of a council-initiated appeal and decided to take up the matter in conjunction with a tree removal permit which was part of the same application.  At the appeal hearing, Councilor Henn presented a cogent and prepared argument and the city council reversed the grant of the application, notwithstanding the arguments of plaintiff’s counsel that the council had no authority to hear the appeal and that Henn was biased in such a way as to void the Council decision.  In its final order, the Council asserted a “longstanding policy” that allowed council members to seek review of planning commission decisions, which it had invoked on eleven previous occasions.

When plaintiff sought an administrative mandate to challenge the denial, the city responded with a cross-complaint for a preliminary injunction, which the trial court granted while denying the administrative mandate.  That court took no action to a civil rights damage claim filed in response to the preliminary injunction claim.

Jennifer Baragar, Garvey Schubert Barer

Garvey Schubert Barer is pleased to sponsor Housing Land Advocates’ Conference - Equity in Form and Function: Recent Trends in Housing Policy on November 7, 2014. Ed Sullivan and Jennifer Bragar will be featured speakers, and will be joined by other experts from across the nation. Join us for a 10th Anniversary Celebration of Housing Land Advocates’ work!

November 7, 2014, Ed Sullivan and Jennifer Bragar, will present during the Housing Land Advocates Conference on at David Evans and Associates, 2100 Southwest River Parkway, Portland, OR 97201.

See below for more details and links to conference registration, or learn more at

Housing Land Advocates

Equity in Form and Function: Recent Trends in Housing Policy

Cosponsored by: Housing Land Advocates, Garvey Schubert Barer, and David Evans and Associates

Housing features prominently in the public discourse of 2014. The tiny house movement is gaining popularity with DIY builders, private developers are racing to complete micro-apartments, and democratically run self-help homeless communities are are seeking recognition along the West Coast. This year's Housing Land Advocates (HLA) conference continues these conversations but with a focus on the geography of equity. It asks how emerging housing forms can be used to further affordable and fair housing. It emphasizes the function of housing as a means of accessing opportunity. To this end, the conference offers an analysis of the U.S. Department of Housing and Urban Development's new regulations around affirmatively furthering fair housing and updates participants on the legal landscape of inclusionary zoning that is being tested by California Building Industry Association v. City of San Jose. HLA is bringing together national, regional and local experts to explore these concepts and issues and to consider ways to support a community vision that does not leave anyone behind.

Keynote Speaker: Marc Brenman

Teacher, author and policy expert on issues of diversity, equal opportunity employment and social justice, Mr. Brenman previously worked as the Executive Director of the Washington State Human Rights Commission, Senior Policy Advisor at the U.S. Department of Transportation, and Division Director for the Office of Civil Rights at the U.S. Department of Education.

Conference Schedule

9:00am Welcome from HLA President Jennifer Bragar

9:15am Affirmatively Furthering Fair Housing: Proposed Regulations and Actions to Consider

9:45am Inclusionary Zoning: Legal Developments

10:30am Morning Panel - Housing Affordability & Neighborhood Change

12:00pm Lunch and Keynote Speaker: Marc Brenman - Title VI Transportation Planning and Fair Housing

1:00pm Organized Networking Opportunities

1:30pm Gentrification: A Talk about N/NE Portland

2:00pm Afternoon Panel - There Goes the Neighborhood: Emerging Housing Alternatives

3:30pm Afternoon Panel - Inclusionary Zoning: Threats and Opportunities

AICP and Oregon State Bar CLE credit pending

Conference Location:

David Evans and Associates

2100 Southwest River Parkway, Portland, Oregon 97201

Who We Are:

Housing Land Advocates was formed in 2004. We are a 501(c)(3) charitable corporation, and pursue our work as an entirely volunteer-run and -operated organization. We advocate for land use policies and practices that ensure an adequate and appropriate supply of affordable housing for all Oregonians.

Online Registration

Paper Registration Form & Instructions available on Housing Land Advocates website

Visit the website: for updates on conference speakers and registration information.  Contact HLA at for conference sponsorship opportunities.


new york map magnifiedTuccio 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).

A recently decided case by the Oregon Land Use Board of Appeals (“LUBA”) says a lot about our land use system – perhaps too much. Richmond Neighbors for Responsible Growth v. City of Portland (February 20, 2013) started out as a challenge to project design and the parking requirements (or lack of such requirements) for a multi-family project at SE 37th and Division which was zoned for the multi-family use. Some neighbors formed Richmond Neighbors for Responsible Growth (RNRG) to object to the project. RNRG wanted input into the design of the site and structure to assure the “livability” and “character” of the area. Some neighbors also wanted fewer apartments. The City treated the application as one in which it had no discretion but to grant the application for 81 units. This development was one of several multi-family developments now proposed in Southeast Portland.

The City moved to dismiss RNRG’s case, contending that, under state law, LUBA could not review building permit applications based on clear and objective standards. LUBA, however, determined that not all the standards were clear and objective, and there was discretion that could be used to determine the height of this apartment building on a site with two different zoning designations. That discretion in determining the height led LUBA last November to conclude that it had jurisdiction to hear the case.

Now that their case could be heard, RNRG was faced with how to make that case. The final order doesn’t mention any challenges to the City’s lack of required onsite parking, as that standard involved no discretion. The one thing RNRG could challenge was the City’s interpretation of an obscure requirement that the “main entrance” for each tenant space be within five feet of the façade facing Division Street and, in fact, face that street. LUBA rejected the City’s interpretation of this requirement that it only applied to non-residential uses as contrary to the text of the regulation. Because the application would have to be revised substantially to meet the City’s code, LUBA reversed (rather than remanded) the City’s decision.

Garvey Schubert Barer was a principal sponsor of the 7th International Planning, Law, and Property Rights 2013 conference, held February 13 - 15 in Portland, Oregon. Over 120 national and international planning professionals, academics, and land use attorneys descended upon the Rose City to discuss current planning issues, strategies and successes throughout the globe.

The conference finished with a full day dedicated to Oregon Land Use and the celebration of the 40 year anniversary of Senate Bill 100, the state bill that established Oregon’s unique land use system. Garvey Schubert’s Ed Sullivan, co-chair of the event, shared the history of the state’s land use system – highlighting successes and identifying where more work must be done. Many others deeply involved in the creation of Oregon’s system spoke about the current and future challenges that face Oregon and the region.

We are pleased to share the links to two of the key note speeches delivered at the conference:

The conference commenced with a stirring keynote address by Dwight Merriam, entitled “Getting Past ’Yes or No‘ – Linking Police Power Decision-Making with Just Compensation” watch his speech here.

Professor Lee Fennell, University of Chicago Law School gave the closing keynote speech entitled, “Optional Planning”, watch her speech here.

For more information about the PLPR, please visit this year’s event website as well as the organization’s website. The 2014 PLPR Conference will take place in Haifa, Israel.

It is not uncommon for property owners to believe that government actions have taken or significantly decreased their property values to the extent the actions constitute a “taking” of the property, i.e. “inverse condemnation.”  In some cases this condition may be the result of “condemnation blight.”  What isn’t common is for a court to agree. 

The seminal case in Oregon is Lincoln Loan Co. v State Hwy Comm’n, 274 Or 49 (1976), where the Oregon Supreme Court determined the plaintiff had at least pled sufficient allegations to claim condemnation blight.  The allegations included the State having sent letters to neighbors and tenants of its intent to take the property, the State condemning and destroying nearby properties, giving the plaintiff’s tenants notice they would have to move and filing condemnation actions.  Given all this, the Court concluded the plaintiff had pled sufficient allegations to constitute condemnation blight.

In a recent case in Linn County, Hall v. State of Oregon by and through the Oregon Department of Transportation, 252 Or App 649 (Oct. 10, 2012), a property owner claimed ODOT had committed condemnation blight.  The property owner plaintiff in Hall owned land near an I-5 interchange that was in the preliminary planning phase by ODOT. It is common, and in this case was required, that the government set out options as part of the planning process.  One of the potential options of ODOT was to close the interchange, thereby landlocking the property.  In accordance with federal planning requirements, ODOT informed the plaintiff owner, the general public and affected governments of all of its potential options for the interchange, including the option to close it.  ODOT held public meetings in furtherance of the planning process, and when the closure option was shown as being unpopular, ODOT revised the closure option with a more delayed process.  Notwithstanding, the plaintiff sued ODOT, claiming its actions constituted an inverse taking because of the “blight” it caused to plaintiff’s property.

Naylor v. Prince George’s County, 27 A3d 597 (Md. App., 2011), involved the “Smart Growth Initiative” made part of defendant’s master plan adopted as part of the general plan by the Maryland-National Capital Park and Planning Commission (“Commission”) which set a limitation of less than 1% for the “Rural Tier” of Prince George’s County. Plaintiffs challenged a 19-lot subdivision on 95.5 acres approved by the County and adjacent to another subdivision by the same developer. The trial court affirmed defendant’s approval and plaintiffs appealed. There were three issues on appeal: standing (which the court declined to address, given its decision on the merits), conformity to the County and Commission plans, and substantial evidence to justify the findings.

The appellate court stated that it stood in the same position as the trial court and conducted a narrow and highly deferential inquiry, i.e., whether there was an erroneous conclusion or law or whether there was substantial evidence in the record for the decision. In previous related cases, Maryland courts determined that a subdivision in this area of the County must comply with both the County Master Plan as well as the Commission’s General Plan. In one previous case, the Maryland Court of Appeals (the state’s highest court) determined that the 1% growth limit for rural areas applied in cases like this, but also said the local planning board had leeway in its decision making, especially given the horizon year of 2025 was far distant and the Board would not be required to deny all applications to achieve the desired equilibrium. Instead, the Board must either analyze any impasse of granting the application on long term growth objectives or explain why such analysis was not necessary. In any case, the Board cannot ignore the issue if raised.

Last night Portland area industry professionals and representatives from ODOT, Metro, LCDC, Washington County, and several other organizations, joined the Euclid Society at the GSB Portland offices for a discussion about the recent amendments to Oregon’s Transportation Planning Rule (TPR).

Ed Sullivan opened the meeting with a history where, beginning in 1974, Oregon instituted Statewide Planning Goal 12 to provide and encourage a safe, convenient and economic transportation system. In time however, more detailed requirements were necessary and the TPR was born in 1991. At bottom the TPR requires:

• ODOT and Metropolitan Planning Organizations (“MPOs”) which are designated by the Governor to deal with transportation needs within a given region to adopt binding Transportation System Plans (“TSPs”)

• Coordination between transportation plans and comprehensive plans and among state and local agencies involved with transportation for project development

• Safeguards to assure that transportation needs are considered in comprehensive plans, as well as plan amendments and zone changes, the latter through the most litigated provision, OAR 660-012-0060, Plan and Land Use Regulation Amendments.

Oregon is unique in its view that transportation planning is integral to all land use decisions and its TPR codifies the requirements to look at each decision’s impact on local and regional transportation systems.

William Kabeiseman then took the floor, to explain the recent modifications to the TPR. These changes include the addition of an option for local governments with urban areas to adopt multi-modal mixed use areas to allow mixed use development; and a rural fix that will allow economic development projects that may have impacts on state highways to avoid a full blown TPR analysis. This portion of the presentation highlighted the refinement of the “two Oregons” where state law recognizes that different regions face different challenges when it comes to transportation planning.

An Ed Sullivan Case Summary:

Farmers for Fairness v. Kent County Levy Court, 2012 WL 295060 (Del. Ch.) arose over respondent’s adoption of a new county comprehensive plan which, Petitioners claimed, adversely affected the use and value of their property. Petitioners are landowners and their representatives who own land outside urban growth areas. Respondent alleged the plan had no immediate effect while Petitioners alleged that the effect was immediate, notwithstanding the lack of change to the zoning regulations and maps. Delaware law requires the adoption and periodic review of a comprehensive plan. The County’s motion to dismiss was based on ripeness grounds and its consideration preceded that of the merits of Petitioners’ claims.

Petitioners claimed that Delaware statutory law prohibited development in conflict with the comprehensive plan and the impact of the plan adoption effected zone changes from a general maximum density of one dwelling per acre to one dwelling per four acres. Respondent contended the case was not ripe until the County adopted new regulations and maps

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