The City of Seattle recently implemented a new progressive energy efficiency policy that requires certain commercial buildings in Seattle to get a tune-up assessment every five years. The program encourages commercial buildings to run more efficiently by reducing energy and water costs, which is good for the environment and good for lowering building operating costs. We expect that most commercial landlords will try to pass through the initial cost of obtaining a building assessment to commercial tenants via common area maintenance (CAM) charges. The upside is that, in the long-term, energy and water costs are expected to decrease as the systems become more efficient.
Before commercial landlords decide to pass through any tune-up program costs to tenants, they should first analyze their leases to confirm whether they are allowed to do so. Conversely, commercial tenants should also review their leases to understand their rights, including potential savings that could be passed through.
Two recent court decisions confirm that retail tenants cannot ignore continuous operation covenants as both ruled the retailers’ stores must remain open for business.
Starbucks Blocked from Closing Teavana Stores
In an epic battle between mega-shopping center owner Simon Property Group and seemingly ubiquitous retail tenant Starbucks, Simon has won a crucial battle. Last summer, Starbucks announced publicly that it was closing hundreds of its Teavana stores, most of which are located in shopping malls around the country. Simon, reportedly the largest shopping center operator in the United States, responded by filing suit against Starbucks in Indiana to block the closure of Teavana stores located in Simon malls. With the battle lines drawn, an Indiana judge ruled in favor of Simon and issued a preliminary injunction prohibiting Starbucks from closing 77 of its stores in Simon malls.
This article originally appeared in the August 2017 edition of the Oregon Real Estate and Land Use Digest, Volume 39, No. 4, a publication of the Oregon State Bar Section on Real Estate and Land Use.
The Court of Appeals recently weighed in on the “ripeness” of claims for inverse condemnation and to interpret a judgment issued after a prior condemnation trial under the Uniform Declaratory Judgments Act. The case demonstrates the importance to both a condemner and property owner of clearly and unambiguously describing the scope of a taking in the conveying document – in this case a condemnation judgment.
Is a commercial lease for cannabis operations void as an illegal contract under federal law?
While a cannabis operation may be properly licensed and permitted under state marijuana laws, the federal Controlled Substances Act makes it unlawful to lease property knowing it will be used for the illegal production or distribution of controlled substances. An Arizona-based cannabis business was confronted with this very issue after an attempt by its landlord to revoke the operator's lease. Find out what the court decided in the latest post on GSB's Cannabis Business Blog.
The Central Eastside Industrial Council and other interested businesses sought LUBA review of the City of Portland’s decision that a houseless rest area and tent camp for houseless persons was a Community Service Use allowed in the General Industrial Zone (IG1 Zone). The city’s decision would have allowed the Right 2 Dream Too (“R2DToo”) Camp to relocate from downtown Portland to land near Oregon’s Museum of Science and Industry. The subject property is designated as an industrial sanctuary in the city’s Comprehensive Plan.
Garvey Schubert Barer is proud to sponsor the 2016 Housing Land Advocates Conference: Seeking Prosperity: The Role of Housing in Local Economies held on Friday, November 4, 2016 at David Evans & Associates in Portland, Oregon.
In Harbor Missionary Church Corp. v. City of San Bueanaventura, 642 Fed. App. 726 (9th Cir., 2016), plaintiff had a church ministry serving the homeless. Defendant told Plaintiff it needed a conditional use permit (CUP) and, when it applied for the same, denied it. Plaintiff then brought a suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), requesting a preliminary injunction to keep its ministry available pending appeal. The trial court denied the injunction, finding the church suffered no substantial burden under RLUIPA because it could move its ministry elsewhere and that the denial of the CUP was the least restrictive means of meeting the City’s concerns.
U.S. v. Grace, 640 Fed. Appx. 298 (5th Cir., 2016) involved the disposition of a sentencing remand by the Fifth Circuit in a zoning bribery case. Defendant mayor was charged with 13 counts of corruption involving four schemes, and was convicted on seven of those counts. The jury acquitted defendant on the remaining counts. In the first appeal, the court upheld the convictions, but remanded the case for resentencing, finding the trial court erred in its calculations.
Folsom v. Zoning Board of Appeals of Milford, 160 Conn. App. 1 (2015) involved the appeal of an unrepresented plaintiff who had successfully appealed a zoning enforcement officer’s issuance of a certificate of zoning compliance to his neighbor who wished to build a structure on adjacent property. Plaintiff then sought reimbursement for his incurred for that appeal, plus interest. On motion, that complaint was struck. Plaintiff filed another suit, alleging the zoning enforcement officer was personally liable to plaintiff for failure to enforce the zoning ordinance, that the Board of Zoning Appeals was liable for failing to disqualify itself from the underlying case over a conflict of interest, and the defendant city was liable to plaintiff for reimbursement of his costs. That complaint was also struck and plaintiff appeals the grant of both motions to strike.
A memorandum opinion in Neighbors for Fair Notice v. City of Seattle, 2016 WL 2754536 (9th Cir., 2016) disposed of a case in which Plaintiffs complained that Defendant City did not provide them with personal notice in approving a lot boundary line adjustment, contending that Washington’s Land Use Petition Act (LUPA) provided them with a protected property interest in the City’s proceedings in which a minimum lot size of 5000 square feet for single family homes could not be changed without those proceedings. The trial court dismissed the case finding no cognizable property interest under the circumstances. The trial court said that “only those rules and understandings that support legitimate claims of entitlement give rise to protected property interests” require notice and found that LUPA did not create such an interest so as to require notice.
The Ninth Circuit found the dismissal proper and affirmed. Because there was a discretionary decision and no vested right created under state law, the decision appears to be correct from a due process point of view. The due process clause of the Fourteenth Amendment protects “life, liberty and property” interests; thus, a plaintiff must show the existence of such an interest. Because Plaintiffs could not show the existence of such an interest, there was no constitutional claim to pursue.
Neighbors for Fair Notice v. City of Seattle, 2016 WL 2754536 (9th Cir., 2016).
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.