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Skyline_farm_city clipartThere were two failed efforts to expand Woodburn’s Urban Growth Boundary (UGB), initially begun in 2005 which would allow the city to plan, annex and develop lands around the existing city limits. UGB expansion in Oregon requires evaluation of two sets of factors: one relating to the need for expansion for the 20-year timeframe required by law, and the other relating to the location of the revised UGB. Based on city population projections, additional lands for residential use were anticipated. The rub was over the total amount of lands needed for future residential, commercial, industrial, and employment uses, as well as the location of the revised UGB. 

Shook v. Pitkin County Board of County Commissioners, 2015 WL 3776876 (Colo. App., June 18, 2015), involved a complaint of a potential land use code violation on Plaintiff’s property. Following an investigation, a notice of violation was directed at Plaintiff, who obtained a permit. No further action was taken on the violation; however, Plaintiff sought all public records concerning the complaint. Defendant supplied some of the requested records, but did not include the name and address of the complainant and certain handwritten notes of the inspector who processed the complaint. Plaintiff filed a declaratory judgment action to obtain that information under the Colorado Open Records Act (CORA), but the trial court upheld the denial of disclosure under an exception in that Act. Plaintiff appealed, seeking the disclosure and statutory attorney fees and costs. 

For the past nine years, Thornburgh Resort Company, LLC and its successor Loyal Land, LLC have attempted to site a destination resort on 2,000 acres in Deschutes County. Ms. Annunziata Gould has continually challenged this effort. The latest challenge, Gould v. Deschutes County (Gould X), may have been the last, for the Oregon Court of Appeals latest decision identified some significant boundaries to the deference that it and LUBA must give to local government interpretations of their own plan and land use regulations. A little background is necessary.

iStock_000009179828_LargeIn a long-awaited decision, the California Supreme Court upheld an “inclusionary zoning” ordinance by the City of San Jose that provided for construction of low and moderate-income housing by requiring a developer of 20 or more units to set aside 15% of the units for the private purchase by those with low- or moderate-incomes. The California legislature had authorized, but did not require, any particular method to provide such housing.

iStock_000015829761_LargeAlthough not garnering the rallies and applause given to the U.S. Supreme Court’s recent decisions dealing with the Affordable Care Act or same-sex marriage, the Court’s ruling considering the scope of the Fair Housing Act is likely to have just as much impact in how neighborhoods develop and in the choices protected classes of people – such as those protected by race, disability and familial status - have about where to live.

In Texas Department of Housing Affairs v. Inclusive Communities, Inc., the Inclusive Communities Project (ICP), a non-profit organization that seeks to promote racial integration in Dallas, sued a state agency charged with allocating HUD-issued low income housing tax credits to developers who build low-income housing projects. The ICP accused the Texas agency of disproportionately allocating the tax credits to properties in poor areas in violation of the Fair Housing Act of 1968 that makes it illegal to refuse to sell, rent “or otherwise make unavailable” housing to anyone because of race, sex or other protected categories. Between 1995 and 2009, the state did not award tax credits for any family units in predominantly white census tracts, and instead awarded tax credits to locations “marked by the same ghetto conditions that the FHA was passed to remedy,” ICP’s pleading states. ICP did not allege intentional discrimination, but rather whether the fact that issuance of tax credits within solely high-poverty areas that results in a disparate impact on minorities is sufficient to show a violation of the FHA.

Justice Kennedy, writing for the majority, noted that while de jure racial segregation in housing has been unlawful for over a century, de facto segregation remains. Congress passed the Civil Rights Act of 1968 and amendments to the Fair Housing Act in 1988 (the Fair Housing Amendments Act or FHAA) as well as cases applying Title VII of the Civil Rights Act of 1964, which banned many acts of housing discrimination, as antidiscrimination laws that focus not just on the “mind-set of the actors” but also on the “consequences of the actions.” By its terms, the FHA and its amendments were enacted to provide for fair housing and to prohibit unfair discriminatory housing practices. The Court added: "These unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification. Suits targeting such practices reside at the heartland of disparate-impact liability."

The Court emphasized at some length that the disparate impact test was not formulaic and must be applied flexibly and specifically expressed concern over the use of racial quotas. The test must require a “causal link” in a case such as the one before it, between the policy and discrimination so as to remove “artificial, arbitrary and unnecessary barriers” to housing. The Court concluded:

Much progress remains to be made in our Nation’s continuing struggle against racial isolation. In striving to achieve our “historic commitment to creating an integrated society,” we must remain wary of policies that reduce homeowners to nothing more than their race.

Justice Alito writing for the dissent, joined by Chief Justice Roberts, Justice Thomas and Justice Scalia, focused on the statutory language “because of race” and concluded that only intent or motive mattered. As a result, Congress intended to cover disparate treatment — not claims of disparate impact. Quoting from another case, Alito pointed out: “The Court acknowledges the risk that disparate impact may be used to ‘perpetuate race-based considerations rather than move beyond them.’”

This case highlights the equity associated with giving all individuals choices in selecting appropriate housing rather than focusing solely on their quantity. But calling HUD’s Section 8 program “Housing Choice” is entirely undermined if families really have no choice about where they are going to live. As importantly, it illustrates the link between affordable housing and land use planning. The land use choices that planners and housing advocates make that results in segregation can violate the Fair Housing Act even though it may be entirely inadvertent.

More and more the annual Oregon land use legislative update is a story about the legislature dabbling around the edges of land use controversy that results in legislative spot zoning.

For example, House Bill 3098 started out as the Young Life Church bill to allow expansion of summer camp facilities at the Rajneeshpuram property.  It was amended to allow youth camps on low quality farmland throughout eastern Oregon.  While critics of bills that are aimed at special projects, like the Young Life Church (or another failed bill for Project Azalea - Senate Bill 845),  may claim victory, other farmland preservationists may view House Bill 3098 as eroding farmland protections because of its breadth.

One notable bill that did not pass was an industrial supersiting bill, House Bill 3267, aimed at areas outside the urban growth boundary in Malheur County because critics faulted the House’s passage of the bill without a public hearing.  A few industrial supersiting bills did pass – Senate Bills 246 and 253 that set forth standards for supersiting, and more industrial lands bills are expected in next year’s session.

Senate Bill 77 started out as a bill that would have meant mayhem for parties to LUBA appeals because it called for abnormal timelines for argument before LUBA based on where an application was in the local review process.  Fortunately, for land use practitioners, amendments were made to the bill to omit any of these process changes.  Instead, the bill retained a number of statistical gathering requirements for LUBA to track and report statistics on its website:

  • The number of reviews commenced.
  • The number of reviews commenced for which a petition is filed.
  • In relation to each of those numbers, the rate at which the reviews result in a decision of the board to uphold, reverse or remand the land use decision or limited land use decision.
  • A list of petitioners, the number of reviews commenced and the rate at which the petitioner’s reviews have resulted in decisions of the board to uphold, reverse or remand the land use decision or limited land use decision.
  • A list of respondents, the number of reviews involving each respondent and the rate at which reviews involving the respondent have resulted in decisions of the board to uphold, reverse or remand the land use decision or limited land use decision.
  • Additionally, when a respondent is the local government that made the land use decision or limited land use decision, the board shall track whether the local government appears before the board.
  • A list of reviews, and a brief summary of the circumstances in each review, under which the board exercises its discretion to require a losing party to pay the attorney fees of the prevailing party.

Tags: land use

City of Riverside v. Inland Empire Patients Health and Wellness Center, Case No. 198638, (Cal., May 6, 2013) tested a local ban on facilities that distribute “medical marijuana” despite passage of an initiative that permitted those activities in limited circumstances.  Local home rule in California is enshrined in the Constitution and allows the passage and enforcement of local ordinances not in conflict with the criminal laws of the state.  This case involved the validity of Defendant City’s prohibition of the use and distribution of marijuana as a local nuisance.  The City, following the passage of the ordinance, brought injunctive proceedings against defendant and succeeded in both the trial court and the California Court of Appeals.  Defendant sought review and again claimed the local ordinances were preempted by state law.

The court commenced its analysis by examining the status of marijuana under the federal Controlled Substances Act (CSA).  In 1996, despite the federal preemption under the CSA, the voters in California passed the Compassionate Use Act (CUA) which allowed for medical use of the drug.  In 2004 the California legislature enacted the Medical Marijuana Program (MMP) to allow for the cultivation and use of marijuana in certain medical situations by excepting those activities from criminal and general nuisance laws.  These state laws have no impact on the general federal prohibition on the cultivation and use of marijuana.

The instant injunction proceedings were initiated after plaintiff notified defendant that its marijuana dispensary was not permitted under local zoning regulations.  The court said that local authority over land use in the state was an inherent police exercise rooted in the State Constitution, rather than being a legislatively delegated power.  Moreover, there is a presumption that such exercise is not preempted by state law.  To be preempted, the local ordinance must either require what the state law prohibits or prohibits what the state law demands.  No preemption will be inferred when both sets of laws may coexist.  Neither the CUA nor MMP specifically amend local zoning regulations.  The court concluded that these laws may operate concurrently.

In Ross v. RagingWire Telecommunications, Inc., 42 Cal. App. 4th 920 (2008) the court rejected an employee’s challenge to his firing for having trace amounts of a chemical related to marijuana in his blood.  In that case, the court said the relaxation on criminal laws on the use of marijuana did not extend to prevent discharge for marijuana use under an employment policy.  In the criminal law context, the California Appellate Court had read the two state acts narrowly so as not to preempt.  In City of Claremont v. Kruse, 177 Cal. App. 4th 1113 (2009), the California Court of Appeals upheld a land use moratorium on permit issuance to marijuana dispensaries, finding no express conflict between state and local law in that circumstance.  Similarly, the Court of Appeals upheld land use regulations on dispensaries in City of Los Angeles v. Hill, 192 Cal. App. 4th 761, (2011), concluding that the MMP and CUA did not confer on qualified patients and their caregivers unfettered rights to cultivate or dispense marijuana as they choose, thus upholding a regulation inquiring a separation of marijuana dispensaries from schools, playgrounds, parks, places of worship and other uses by 1,000 feet.

The court’s analysis found no express preemption of local regulations on dispensaries.  Those laws relating to cultivation and distribution of marijuana exempted by the MMP are criminal and nuisance laws, but not land use regulations.  Moreover, those acts provide no implied preemption of land use laws – they are not coextensive in their reach and local governments may regulate or prohibit those activities as a local nuisance without fear of preemption.  A combination of state law and local ordinances accommodate multi-jurisdictional interests so the California cities may adopt regulations under the State Constitution and, unless preempted by state law or unconstitutional, those regulations will apply.  The court concluded:

As we have noted, the CUA and the MMP are careful and limited forays into the subject of medical marijuana, aimed at striking a delicate balance in an area that remains controversial, and involves sensitivity in federal-state relations. We must take these laws as we find them, and their purposes and provisions are modest. They remove state-level criminal and civil sanctions from specified medical marijuana activities, but they do not establish a comprehensive state system of legalized medical marijuana; or grant a "right" of convenient access to marijuana for medicinal use; or override the zoning, licensing, and police powers of local jurisdictions; or mandate local accommodation of medical marijuana cooperatives, collectives, or dispensaries.

Of course, nothing prevents future efforts by the Legislature, or by the People, to adopt a different approach. In the meantime, however, we must conclude that Riverside’s ordinances are not preempted by state law.

Justice Liu concurred, having a slightly different view of preemption, but agreeing with the majority that the Riverside ordinance was not preempted by the MMP or CUA.

The unanimous result in this case by a well-regarded court carefully explains that exemption of certain activities from criminal and nuisance laws cannot be extended to require local governments to allow those activities under their zoning regulations.

On February 8th, 2012 Garvey Shubert Barer is hosting an event titled "Real Estate for Planners: What Planners Should Know About Real Estate Issues."

The discussion will be followed by a wine and cheese reception.

To find out more about the event please view here.

The legislature passed a handful of land use bills this session.  This includes Senate Bill 766 related to Economic Recovery and expedited site reviews for proposed industrial development, as well as Senate Bill 960 and House Bill 3280, related to winery events.  Read more for a quick snapshot.

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