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Justice Antonin Scalia passed away last week after almost 30 years as a justice of the U.S. Supreme Court. Although his impact was felt throughout the country, it is worth pausing to look at how he affected the land use system more broadly and, in particular, Oregon’s system.

Small toy house on leavesLike a fly that can’t keep away from the flame, the U.S. Supreme Court has decided to add a Fifth Amendment Takings Clause case to its docket for 2016. More than 25 years have passed between the U.S. Supreme Court incursions into the use of the takings clause regarding conditions of approval in cases such as Dolan v. City of Tigard, Nollan v. California Coastal Commission, and the US Supreme Court’s 2013 decision Koontz v. St. Johns Water Management District.  The Court has decided to wade back into the takings mire once again. Rather than dealing with efficacy of land use conditions, as with the issue as in Nollan, Dolan, and Koontz, this time the issue relates to the “parcel as a whole” rule.

iStock_000070594267_LargeHorne v. Department of Agriculture, No. 14-275 (June 22, 2015) was an "as applied" takings challenge to an almost 80-year old law that was enacted by Congress as part of President Franklin Roosevelt's New Deal. The Agricultural Marketing Agreement Act of 1937 established a marketing system for certain products. Under the Act, Defendant U.S. Department of Agriculture required raisin growers to set aside a percentage of their crop, as determined by the Raisin Administrative Committee (RAC), whose members consist of growers and others in the raisin business and are appointed by the Secretary of Agriculture. The required “set aside” has the effect of raising raisin prices and allowing the RAC to market and otherwise dispose of the set aside raisins. There are, at times, sufficient receipts from the set aside raisins to exceed their market value; however, there are also at other times insufficient revenues to equal their market value, including the year at issue.

The regulatory saga of the West Linn Corporate Park appears to be over – the US Supreme Court issued an order today declining to review the 9th Circuit’s decision in the case largely putting an end to the litigation that began in 2001.  The order leaves in place the 9th Circuit’s unpublished opinion that affirmed in part, reversed and remanded in part and dismissed in part a Federal district court opinion.  The only issues still alive appear to be the requirement for the District Court to reapportion some attorney’s fees.

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