RELU Digest

Our professional publication for more than 25 years, the Digest focuses on practical topics related to real estate and land use ranging from summaries of new legislation to opinions of interest from the Land Use Board of Appeals and state and federal courts, with a concentration on Oregon cases. Published six times each year, the Digest is delivered electronically to all section members and published on the Section website. A collaborative effort of a large group of volunteer writers from the Section and professionally edited, the Digest focuses on information that is useful to practitioners. Even if you are a new Oregon lawyer, we invite you to write case summaries for the Digest.

Current and past issues of the RELU Digest are available here in Adobe Acrobat format (PDF).

Past issues are also available and searchable on the Oregon State Bar website. Click here to visit that site. Please note that you will be prompted to log in to the website using your bar number and the password provided by the Bar.


The most current issues are available to members only through this webpage. Click here to login If you want to have access to older issues, use your OSB login at the Newsletter Library.


August 2015

  • Supreme Court Strikes Down Local Non-Commercial Sign Regulations
  • Junior Mortgage Liens Cannot Be Voided in Chapter 7 Proceedings
  • Disparate-Impact Claims Find New Grounds, New Requisites
  • Three Cs: Clean Air Act, Climate Change, Costs
  • EPA Rulemaking
  • California Supreme Court Dismisses “Unconstitutional Conditions” Claim
  • Reinstatement of Trust Deed Does Not Automatically Follow Use of Correction Deed
  • Substantial-Evidence Standard Sets a High Bar for Reversal of a Local Government’s Decision
  • No Implied Easement Unless All Parties Come to Court
  • Petitioner Must Identify Applicable Statute/Standard Before LUBA Will Apply Significant Impacts Test
  • Short LUBA Summaries

June 2015

  • Notice of Intent to Appeal Properly “Filed” Only When All Persons Receive Notice
  • Response to “An Interesting Take on ORS 90.417”
  • The Now-and-Then of Historical Designation
  • New Legislation: SB 368
  • Corps of Engineers Liable for Lower Ninth Ward Flooding Damages
  • Charitable Bins Protected By First Amendment
  • Subjective Benefits–Impacts Analysis Causes Petitioner to “Frac-Out”
  • Short LUBA Summaries

May 2015

  • Court Splits on “Adversity” Element in Prescriptive Easement Decision
  • Existing Goal Exceptions Do Not Always Authorize New Uses Without a New Goal Exception, and “And” Means “And”
  • The State’s Property Interest in Wildlife
  • Is Short-Term Rental a Residential Use?
  • New York’s Highest Court Rejects Novel Sign Code Challenge
  • Circular Lien Priorities: Utah Adopts the Majority Rule
  • Pending in the Legislature
  • LUBA Denies Attorney Fees Motion
  • Short LUBA Summaries

February/March 2015

  • From the Editorial Desk
  • High Bar for Disqualification of Elected Official
  • An Interesting Take on ORS 90.417
  • An Agency’s Authority to Discipline a Former Licensee
  • Follow-Up to US Bank, NA v. Eckert
  • An HOA’s Ability to Transfer Common Area Property
  • New Hampshire Supreme Court Addresses Unused SDC Fees
  • Marginal Lands
  • LUBA Affirms Demolition of Salem’s Howard Hall
  • “This Town Ain’t Big Enough for the Both of Us”
  • Goal Compliance on Exception Lands
  • Short LUBA Summaries


December 2014

  • Ed Sullivan Lauded by ABA
  • Tied En Banc Decision in Condemnation Case
  • Statute of Limitations in Construction Defect Case
  • HB 4029 Held Unconstitutional
  • Mayor’s Reputation Not a Major Concern
  • Washington Court to Consider Statute of Limitations Questions
  • Supreme Court to Determine Fate of Underwater Junior Liens
  • DLCD Pending Rules on TDCs
  • Revised Sign Code Valid Under Intermediate Scrutiny
  • Utah Court Upholds Contract That Violates Zoning
  • Ex Parte Contact Voids Land Use Decision
  • LUBA Affirms County Approval of Rest Area Project
  • Short LUBA Summaries

October 2014

  • The Digest at Thirty Five
  • Hello
  • Apportionment of Fees Not Required When There Are Common Issues
  • Trustee’s Deed Prima Facie Evidence in an FED Action
  • Adverse Possession and Accretion
  • Sea River Properties, LLC v. Parks: A Commentary
  • County Decision to Remove Traffic Signal Under Further Review
  • New York Court Limits Development Right Credits
  • City Council Slapped Down in Affordable Housing Win
  • Statewide Planning Goal 2
  • Short LUBA Summaries

August/September 2014

  • Good-bye, Thank You, and Welcome
  • Absolute Statutory Compliance Required for Nonjudicial Foreclosure
  • Garbage In, Garbage Out?
  • When it Comes to Severance of a Parcel, Timing is Everything
  • City Misinterpreted Floodplain Provisions of Its Own Comprehensive Plan
  • Oregon Court of Appeals Considers Meaning of “Application for a Permit” in Mandamus Proceeding Context
  • Master Planning and Religious Uses
  • New York Appellate Court Affirms SLAPP Suit Dismissal and Attorney Fee Award
  • Impartial Tribunal Requirement

June 2014

  • Oregon Supreme Court Rules on Standard for “Condemnation Blight”
  • Vacating a Dedicated Roadway: Who Owns it?
  • Creditors With a Money Judgment
  • An Easement-by-Necessity Claim Requires Absolute Necessity
  • Owner of Property Outside of Statutory Notice Area May Not File a Late Appeal at LUBA
  • A Way of Necessity Through Marbled Murrelet Habitat? No way!
  • LUBA Required to Review for Compliance with Transportation Planning Rule
  • Court Upholds City’s Interpretation of its Density Transfer Regulations
  • Court’s Review of a Substantial Challenge is Limited
  • The Effect of Foreclosure Redemption
  • US Supreme Court Derails “Rails to Trails” Legislation
  • LUBA Summaries

March 2014

  • Local Ordinance Requiring Conditional Use Permit for Shooting Range Not Preempted by State Law
  • Waiting for a Meaningful Explanation of the Woodburn Urban Growth Boundary Expansion
  • Eat Up: New EFU Clarifications
  • Ninth Circuit Reverses Summary Judgment For California City in Housing Discrimination Case
  • Seventh Circuit Affirms Summary Judgment Upholding Prohibition of Bible Camp Use
  • LUBA Summaries


November/December 2013

  • King County v. King County and Multnomah County v. Multnomah County
  • No Free Rides: In an Inverse Condemnation Action, Burden of Proof on Damages Component Lies with Plaintiff
  • Washington Court Reviews Fuzzy Math Between Church, Parking, and Neighborhood
  • Fourth Circuit Finds Ripeness “Prudential,” Allowing Takings Case to Proceed in Federal Court
  • Second Circuit Affirms Finding of Breach of Fair Housing Consent Decree
  • LUBA Summaries

August 2013

  • Another Boost for Wind Energy in Umatilla County
  • United States Supreme Court Extends Land Use
  • Takings Claim to Include Money
  • No Damages From Delay in Plat Approval Process
  • Prior to Agency’s Final Decision
  • LUBA Summaries

May 2013

  • Board Must Now Deny Request for Voluntary Remand after Local Government Files the Record in LUBA Appeal
  • Winery Upheld as Commercial Use in Conjunction with Farm Use
  • Court of Appeals Refuses to Supplant LUBA’s Jurisdiction
  • Wind Energy Gets Another Lease on Life in Umatilla County
  • Ninth Circuit Affirms Installation of Road Median Against Constitutional Challenges
  • Time Restrictions on an RV Park’s Permit Allowed
  • Zoning In: Review of Comprehensive Plan Amendments under Washington’s Growth Management Act
  • Washington Appeals Court Decides Vesting Case
  • LUBA Summaries

February 2013

  • PLPR 7th Conference – Convergence of the International Community of Academics, Planners, and Lawyers
  • Court of Appeals Interprets Meaning of “Lawfully Was Permitted to Establish” Under Measure 49 “Express Pathway”
  • Honest Belief Not Required for Extinguishment of Easements by Adverse Possession
  • The US Supreme Court Wrestles in the Swamp of Off-Site Improvement Obligations and Takings
  • Ninth Circuit Decides Another Controversial First Amendment Billboard Case
  • Acceptance of “Non-Empty” Containers Can Subject Plastics Recyclers to Regulation as TSD Facilities for Dangerous Waste
  • The Elephant in the Seattle Courtroom


December 2012

  • Pat Randolph Obituary
  • Déjà Vu: La Tush Lives!
  • Court of Appeals Reverses Large Inverse Condemnation Award
  • Measure 49 Requires Proof of Actual Entitlement to Homesite, Not Possible Entitlement
  • Cream or Sugar? Statutory Interpretation of the Word “or”
  • Willamette River Greenway Plans May Regulate Panoply of Development Activities, Says Supreme Court
  • Court of Appeals Limits Measure 49 “Express Pathway” to a Maximum of Three Dwellings
  • Local Interpretation of Local Legislative History and Latent Ambiguity Entitled to Deference
  • Court Clarifies Expenditure Ratio for Vested Rights
  • What is a Foredune is Not Always a Foregone Conclusion!
  • Court Rejects Reliance on a Range of Development Costs as Part of a Vested Rights Determination
  • Getting More than They Settled for: Amicable Settlement Between Parties Causes Loss of Standing for Petitioners in Unique Washington Shorelines Challenge
  • Ninth Circuit Upholds, Strikes Hawai’i Beach Wedding Rules
  • United States Supreme Court Finds No Taking Immunity From Government-Induced Flooding

September 2012

  • Adverse Possession is Clearly and Convincingly Difficult to Prove
  • Read Express Easements Carefully
  • Acceptance of a Trust Deed to Secure a Construction-Related Debt Waives the Right to File a Construction Lien
  • Unrecorded Deed Has Priority Over BFP Without Consideration
  • No Discovery Rule for Certain Statutes of Limitations
  • Specific Findings to Support Expenditure Ratio is Paramount for Measure 49 Vested Rights
  • When “Under” Means “As Authorized By,” Not “In Accordance With”
  • Maguire v. Clackamas County Underscores the Need to Strictly Follow LUBA’s Procedural Rules
  • Surplus Findings Have “No Legal Effect Whatsoever”
  • Construction Costs as of the Effective Date of Measure 49 Must Be Included in Denominator of Vested Right Expenditure Ratio
  • Ninth Circuit Finds No Damages From Invalid Moratorium
  • LUBA Summaries

June 2012

  • Appellate Court Upholds Adverse Possession Claim
  • When Conveying Real Property, Choose Your Words Carefully
  • Court Hones Clackamas County Conditional Use Criterion
  • Metro Did Not Exceed its Statutory Authority When it Approved a Land Use Order on the Basis of Political Necessity
  • Grand Island Quarry Dispute: “The Aggregate Layer” Includes All Commercially Mineable Material
  • Supreme Court Applies Common Law Analysis To Vested Rights Determination Under Measure 49
  • “No Notice=No Tolling of Time Limit to Appeal” Statute Meets Its Maker
  • RLTA FED Ps and Qs
  • A Tenant Cannot Rely Solely on Chronology to Establish a Presumption of Retaliation under ORS 90.385
  • Does Refusal to Accept Payment of Rent During Termination Dispute Constitute Waiver of Right to Timely Payment of Rent After Dispute is Concluded?
  • Potential Impact to Water Rights Held Sufficient to Support Standing in Washington Land Use Dispute
  • Ninth Circuit Affirms City Ordinance Prohibiting Conversion of Senior Housing in Mobile Home Park to “All Age” Housing
  • California Appellate Court Enforces “Anti-NIMBY” Law
  • LUBA Summaries

March 2012

  • Court of Appeals Holds Reserved Easement Creates No Third-Party Rights
  • 4.7% Ratio of Expenditures for Residential Subdivision is Insufficient to Vest Measure 37 Rights
  • Appellate Court Holds Local Code is Key to Permissible PUD Modifications
  • Bill Stuffing—Federal Government Extends Its Reach into Cell Tower Land Use Decision-Making
  • Ripe for Review? Washington’s Futility Doctrine
  • Application Completeness in Washington
  • Fifth Circuit Upholds New FCC Declaratory Ruling Setting “Shot Clock” on Wireless Communications
  • The End of Urban Renewal in California and Lessons for the Northwest
  • Kansas Court Upholds Constitutionality of County Wind Farm Zoning Regulations
  • LUBA Summaries

January 2012

  • CC&R Provisions Trump Subdivision Request
  • Anticipatory Mitigation of Police Power Takings Ruled Compensable
  • Goal-Post Rule Does Not Apply to Zone Changes or Permit Applications Consolidated with a Comprehensive Plan Amendment
  • TriMet Shows How to Terminate a Contract
  • Searching for a Workable UGB Process
  • Washington Appellate Court Upholds City of Vancouver Riparian Permits
  • Final Decision in Land Use Matter Not Rendered Until Decision on Local Motion for Reconsideration Issues
  • How Not to “Issue” a Land Use Decision in Washington
  • Local Fire Department Extinguishes New Development Plans in Washington
  • Land Use Board of Appeals
  • OSB Legislative Summaries


November 2011

  • Anticipatory Mitigation of Police Power Takings Ruled Compensable
  • Goal-Post Rule Does Not Apply to Zone Changes or Permit Applications Consolidated with a Comprehensive PlanAmendment
  • Tri-Met Shows How to Terminate a Contract
  • Searching for a Workable UGB Process
  • Washington Appellate Court Upholds City of Vancouver Riparian Permits
  • Final Decision in Land Use Matter Not Rendered Until Decision on Local Motion for Reconsideration Issues
  • How Not to “Issue” a Land Use Decision in Washington
  • Local Fire Department Extinguishes New Development Plans in Washington
  • Land Use Board of Appeals
  • OSB Legislative Summaries

August 2011

  • In Memoriam: Donald C. Ashmanskas
  • LUBA’s Decision is Justicable, but Underlying Decision is Dictum
  • Numerators, Denominators, and the Vested Rights Expenditure Ratio
  • Court of Appeals Determines What is “Necessary” for Economic Opportunity Analyses
  • Court of Appeals Resolves Juristictional Issue in a Rare Goal 15 Case
  • More Scrutiny for Vested Rights Expenditure Ratio
  • Washington Appellate Court Upholds City of Vancouver Riparian Permits
  • Texas Supreme Court Finds Taking in Beach Avulsion
  • LUBA Summaries

June 2011

  • Judge Sercombe Ties Up Loose Ends under Measure 37
  • Vested Rights Under Measure 49 Section 5(3) Require a Determination and Consideration of the Ratio of Expenditures Made and the Total Project Cost
  • Court of Appeals Rules on Valuation of Special Use Properties in Condemnation
  • Request for Continuance Waived for Lack of Specificity
  • Submission of Alternative Plan Did Not Extend City’s 120- Day Deadline to Issue Final Decision
  • Ninth Circuit Finds No “Rough Proportionality” Obligation for Offsite Improvements
  • Ninth Circuit Affirms “Rail Over Bus” Choice by Metropolitan Transportation Authority
  • Recent RLUIPA Cases
  • Land Use Applications and the Telecommunications Act: The FCC’s “Shot Clock” Rule
  • LUBA Summaries

April 2011

  • Undisclosed Leaky Basement Floats Plaintiff’s UTPA Claim
  • Off-Site Improvements Protected Against Midstream Changes in Construction Regulations
  • County Cannot Rely on a “Reasons” Exception to Circumvent Its Own Zoning Restrictions
  • Measure 37 and Measure 49 Cases
  • Banning Protest Sign Unconstitutional, Says North Carolina Federal Court

January 2011/December 2010

  • Oregon Supreme Court Revises Deference Test
  • Court Defers to LUBA’s Interpretation of its Own Decision in Another LUBA Case and Declines to Address Arguments Not Raised Before LUBA
  • LCDC Order in Woodburn UGB Expansion Inadequate for Judicial Review
  • Court of Appeals Adds to Siporen’s Progeny
  • Court Interprets “Needed Housing” Exception for Cities Under 2,500
  • Court of Appeals Weighs in on Clatsop County LNG Proposal
  • LUBA Summaries


November 2010

  • Oregon Supreme Court Clarifies Ripeness Rules and Extent of Nollan and Dolan
  • Court of Appeals Identifies Key Factors in Measure 49 Waiver Consistency and Common Law Vested Rights Determination
  • Court of Appeals Affirms Conversion of Broughton Lumber Mill Site to Recreation Resort
  • Vesting Rights: Timing Remains in the Name of the Game
  • Pennsylvania Supreme Court Invalidates State Way of Necessity Statutes
  • LUBA Summaries

September 2010

  • Court of Appeals Allows Travel Center Development to Proceed
  • Supreme Court Plurality Finds No “Judicial Taking” – Yet
  • Eleventh Circuit Upholds Orlando Ordinance Regulating Feeding in Public Parks
  • Third Circuit Nixes Creative Attempted Evasion of Pittsburgh Sign Regulations
  • No Changing the Goal Posts in New Jersey
  • LUBA Summaries

July 2010

  • Third Application to Permit Triplex is Tripped Up On Treble Review
  • Profitability Not a Consideration for Determination of “Farm Unit” Analysis
  • State Approval of Shorelines Management Plan Makes the Plan a State Action, Not a Local Government Action
  • Planter in Wrecked Auto Not Protected Speech, Says Fifth Circuit
  • Fourth Circuit Affirms Invalidation of Airport Newsrack Regulations
  • LUBA Summaries

April 2010

  • Hostile Use and Adverse Possession
  • Why Marion County’s Approval of a Destination Resort Was Valid Long After Its Initial Review
  • Wildlife Mitigation Plan’s Uncertain Location Prevents Final Approval of Resort
  • Inclusive “Or” in Statute Means Developer Can Negotiate and Litigate When City Fails to Take Final Action
  • Local Aesthetic Regulations Can Trump the Federal Telecommunications Act
  • Ohio Court Gives Credence to Comprehensive Plan
  • New York Court of Appeals Upholds Atlantic Yards Urban Renewal Acquisitions
  • LUBA Summaries

February 2010

  • Local Government May Choose Among Plausible Interpretations
  • Transportation Facilities Must Be Considered in Zone Changes
  • Shrinking the Scope of LUPA and the Expanding Procedural Due Process in Land Use Decisionmaking
  • The Seventh Circuit Considers the Meaning of “Assembly” Under the Equal Terms Prong of RLUIPA
  • We Meant What We Said the First Time, Says Sixth Circuit
  • California Appellate Court Finds Small Tract Airport Planning and Regulation to be Legislative
  • LUBA Summaries


November 2009

  • The Digest at Thirty
  • Stewart v.City of Salem – Reversal of Permit Denial
  • Columbia Ri er Gorge Commission Prevails in its Efforts to Preserve Historic Sites Through Commercialization
  • Oregon Supreme Court Upholds Columbia River Gorge Commission \92s Interpretive Authority But Sends Revised Management Plan Back for Additional Work
  • Development Fees by Ordinance May Still be Added Post-Contract
  • Fifth Circuit Finds City Failure to Make its Curbs,Sidewalks, and Some Parking Lots Compliant with ADA May Bring Liability
  • Oregon Legislative Summaries
  • Bills Affecting Land Use Law

September 2009

  • Measure 49 Supersedes Appealed Measure 37 Judgments
  • Measure 37 Fee Award in English II
  • Only Lawfully Created Parcels Can Be Counted in Determining Whether Forest Template Dwelling Requirements Met
  • A Stream that has been Channelized an Relocated is Still a \93Natural Waterway\94
  • Court of Appeals Decides Easement Survives Where There is No Adverse Possession and Abandonment Is Not Intended
  • Court of Appeals Reaffirms the Relationship Between Deference Under ORS 197.829(1) and the Statutory Construction Rules of PGE v. BOLI
  • Court of Appeals Determines Special Rights to Possession Enabled by Federal Land Grants to Railroads
  • SB 794 Changes Fee Recovery in Condemnation

July 2009

  • Court of Appeals Dismisses an Appeal of Measure 37 Waiver as Moot Under Measure 49
  • Money Judgment for Measure 37 Claim not Mooted by Measure 49
  • Measure 49 trumps Measure 37 waivers and the Goal-Post Statute
  • Court Reiterates Agency Latitude
  • County Approval of a Subdivision Application Under Measure 49 is Inappropriate When Based Upon an Unvested Measure 37 Waiver
  • Courts Differ Over Measure 49’s Impact on Measure 37 Waivers
  • Developer Can Challenge Moratorium Extension, Says California Appellate Court
  • Utah Federal Trial Court Denies Public Agency Motion to Dismiss Takings Case
  • LUBA Decisions

April 2009

  • The Third Time is Not the Charm (When You Fail to Preserve Your Appeal Rights)
  • Beaverton Annexation Battle: The Last Cannonball?
  • Ninth Circuit Upholds California Billboard Law
  • United States Supreme Court: No First Amendment Violation in Refusal of Religious Monument in Public Park
  • Florida Appellate Court Finds Taking in Failed Exaction
  • LUBA Decisions

February 2009

  • Appellate Court Upholds LUBA’s Interpretation of Goals 2 and 10
  • Ninth Circuit Uses Penn Central, Not Dolan, Analysis To Weigh Improvement Requirements
  • Not All Disputes Between Residential Landlords and Tenants Are Subject to One-Year Statute of Limitations
  • Washington Energy Facilities Siting Procedures Preempt GMA
  • LUBA Decisions


December 2008

  • Local Government Advice No Substitute for a Final Land Use Decision
  • Sailboats Can Be Floating Homes Under Residential Landlord and Tenant Act
  • Ninth Circuit Overrules City of Auburn v. Qwest Corp.
  • Split Maryland High Court Muddles Plan Conformity Requirement
  • LUBA Cases

October 2008

  • Court of Appeals Upholds Dismissal of Condemnation Case
  • Ballot Measure 49 Renders Pending Challenges to Ballot Measure 37 Moot
  • The \93Fixed Goal-post Rule \94 Does Not Give Landowner a Vested Right Under Measure 37
  • Ninth Circuit Certifies Takings Questions to Oregon Supreme Court
  • Two Years and You\92re Out Under Fair Housing Act
  • Washington Appellate Court Finds Clearing Restrictions Subject to \93tax, fee, or charge\94 Prohibitions
  • Transportation Impacts and Permit Denials
  • LUBA Cases

June 2008

  • Subsequent Purchaser may Sue Builder for Negligence
  • Court of Appeals Revisits Spotted Owl Constitutional Takings Case
  • Portland Gets Tagged on Dolan Issue
  • Streamlined Hearings Process Invalid Says California Appellate Court
  • Land Use Settlement Between City and Its Mayor Rescinded by New Jersey Court
  • LUBA Cases

March 2008

  • PGE, “Plausibility,” and Deference to Local Government Interpretations of Land Use Regulations
  • Amendments to HOA Restrictive Covenants Require Proper Voting and Certification
  • Ninth Circuit Finds Substantive Due Process Claims Aren’t Always Subsumed by Takings Clause
  • Two Recent Measure 37/Measure 49 LUBA Decisions

January 2008

  • Legislative Updates
  • When in Doubt, File Within One Year in Landlord-Tenant Cases
  • Washington Reaffirms Date of Building Permit Application as Date of Vesting
  • California Supreme Court Upholds Use Distinctions in Commercial Zones


September 2007

  • Oregon Court of Appeals Finds a Right to a DLCD Contested Case Hearing for Measure 37 Claimants
  • “Profitibility” Versus “Gross Income” — Which One Matters More in Determining “Agricultural Land”
  • Deed Restrictions and the Curious Case of the Coffee Cart Conundrum
  • Partition Under ORS 105.205 Requires Statutory Tenancy In Common
  • LUBA Summary

July 2007

  • Oregon Court Of Appeals Finds That County Land Use Ordinances Enacted To Implement Columbia River Gorge Commission Management Plan Fall Within Measure 37\92s Federal Law Exception
  • ORS 105.682 Does Not Extend Immunity To Landowners When Persons Are Injured Crossing Their Land To Obtain Access To Other Land For Recreational Purposes
  • Supreme Court To EPA: You Can Regulate Greenhouse Gases If You Want To, But If Not, Just Let Us Know Why

April 2007

  • Spotted Owl Rules Did Not Effect a Taking, Says Oregon Court of Appeals
  • Sign, Sign, Everywhere a Sign
  • Local Government Planners Escape From Liability for Bad Advice
  • Related-Party Exchanges: It Is Not as Bad as You Think
  • NOTICE: The RELU Digest is looking for a new Assistant Editor and a new LUBA Case Summary Author

February 2007

  • Measure 39: The Other Big News
  • Stunted Grape Vines: Pinot Noir or Raisens?
  • How to Appear in a Land use Proceeding Without Participating in It
  • Oregon Supreme Court Overturns Utsey\92s \93Practical Effects\94 Requirement
  • A Correct Survey May not Matter if It Is Old Enough and There Is Reliance
  • NOTICES: The RELU Digest is looking for a new Assistant Editor and a new LUBA Case Summary Author
  • Propery Line Ajustments


December 2006

  • The Oregon Court of Appeals rejects an intervenor’s attempt to object to acknowledged land use regulations through the courts
  • If you file a writ of mandamus, withdraw the writ before violating the court order and finding yourself held in contempt
  • When it comes to establishing a prescriptive easement over a road, adversity is hard to prove
  • Washington court upholds a finding that permitted outright aquaculture activities are subject to the SMA and GMA

October 2006

  • Another skirmish in the annexation wars
  • An island must be contiguous to be an island
  • Squatter\92s right: a claim for adverse possession is upheld despite questions concerning continuous use
  • Drug and alcohol free housing non-profit denied exemption from residential landlord tenant act
  • Divided supreme court sows confusion over wetland regulation

August-September 2006

  • Oregon upholds time, place, and manner restriction in regards to outdoor advertising, but outlaws differing treatment of on/off premise advertising.
  • The City of West Linn\92s parks and recreation facility system development charge amendments withstand scrutiny by the court of appeals
  • City of Portland ordinance prohibiting \93unreasonable interference\94 with park permittees violates first amendment
  • Oregon Court of Appeals addresses ownership of jet fuel stored without notice in a private hanger that was subsequently conveyed to a third party

June 2006

  • Wal-Mart\92s Limited Land Use Process in Oregon City: Perhaps Not As Limited As You Thought
  • Federal Law Preempts Local Regulation of Telecommunications
  • Out of Bounds: No Prescriptive Easement for Golf Balls
  • Washington Supreme Court Settles Calculation of Impact Fees: No Individual Calculation Required
  • Pennsylvania Court distinguishes Kelo and Voids Eminent Domain for Religious Use

April 2006

  • Oregon Supreme Court Upholds Measure 37 as Constitutional
  • Oregon Court of Appeals Addresses Impacts of Proposed Highway Bypass on Residential and Agricultural Land
  • Oregon Court of Appeals Overrules Mid-County Future Alt. and Finds Triple Annexations Constitutional
  • Ninth Circuit Upholds Lake Oswego\92s Sign Ordinance
  • Oregon Court of Appeals Explains Statutory Provision Protecting Land Sale Contract Purchasers

February 2006

  • Statute Prohibiting Live Sex Shows and City Ordinance Regulating Nude Dancers\92 Proximity to Patrons Held to be Unconstitutional Restrictions on Freedom of Expression
  • Oregon Court of Appeals Mostly Upholds Metro\92s 2002 Urban Growth Boundary Expansion
  • Dolan Revisited: Oregon Court of Appeals Decides Timing of Rough Proportionality Analysis
  • Oregon Court of Appeals Rejects the Concept of \93Mutual Adverse Possession\94 by Competing Landowners


December 2005

  • The Whole Parcel Rule Applies Under Oregon Constitution, Says Oregon Supreme Court
  • Court Rejects Metro’s Subregional UGB Expansion Rules
  • Failure to Participate in LUBA Appeal Precludes Party from Later Challenging Legal Issues Resolved in the Appeal
  • Court of Appeals Addresses Challenge to Portland’s Northwest District Plan
  • Alaska Loses Battle over Submerged Lands
  • State Holds Title to Land below High Water Mark of Certain Segments of John Day River

November 2005

  • Marion County Circuit Court Invalidates Measure 37
  • 2005 Oregon Legislation
  • Statutory Immunity Covers Landowners Who Allow the Public to Cross Their Land for Recreational Activities on Other Properties
  • Only So Many Bites at the Apple: Ninth Circuit Looks at Claim Preclusion in Takings Context
  • Oregon Court of Appeals Addresses Polk and Yamhill Counties\92 Attempts at \93Collaborative Regional Problem Solving\94
  • New Jersey Court Upholds Township\92s Use of Eminent Domain for \93Slowing Down\94 Residential Development

August 2005

  • Fifth Amendment Doesn\92t Bar Condemnation for Economic Development, Says U.S. Supreme Court
  • United States Supreme Court Ditches First Prong of Agins
  • United States Supreme Court Rejects Second Bite of the Takings Apple
  • Adverse Possession, Mistaken Belief, and Hostility Under ORS 105.620
  • Ninth Circuit Upholds Ordinance Regulating Secondary Effects of Adult Businesses
  • Landlord Can\92t Have it Both Ways: Must Reject Rent and Seek Eviction or Accept Rent and Waive Right to Evict
  • Denial of Campus Ministry Facility is not a RLUIPA Violation, Says Michigan Federal Court

July 2005

  • Oregon Supreme Court Considers RLUIPA
  • U.S. Supreme Court Says No Attorneys Fees for Violation of Telecommunications Act
  • Oregon Supreme Court Accepts Review in Key Condemnation Appraisal Exchange Case
  • Judgment Creditors May Execute Against Residential Property that Judgment Debtors Have Conveyed to Attorneys Fees Under ORLTA
  • Court of Appeals Explains Entitlement to Attorneys Fees Under ORLTA
  • Sixth Circuit Upholds Billboard Regulations Against Constitutional Challenges

May 2005

  • Oregon Supreme Court to Consider Meaning of \93Good Cause\94 in OMIA Sign Regulations
  • Municipal Ordinances Must Bend to Disabilities
  • Deed Restriction Rendered Unenforceable by Change in Circumstances
  • Redemption Only Knocks Once
  • Landlord\92s Acceptance of Rent as Waiver Under ORS 90.415
  • Federal Circuit Finds ESA Claim Unripe
  • Land Included in Farm Unit is Agricultural Land, Even if Not Actively Farmed, Says LUBA

March 2005

  • The Protection of Sacred Sites Does Not Violate the Establishment Clause of the First Amendment
  • Local Interpretation Wins Again
  • Ninth Circuit Finds Regulatory Taking in Rent Control Ordinance
  • \93As Is\94 Clause and Delivery of Statutory Disclosures Do Not Preclude Liability Under Oregon\92s Legal Lot Statute
  • Close, But Not Close Enough: Substantial Compliance is No Defense When Abandoned Property Notice is Defective
  • Sixth Circuit Invalidates Ohio Investment Tax Credit on Commerce Clause Grounds

February 2005

  • Articles on Measure 37
  • Lessees and Licensees Beware: Private Operators Must Make Public Facilities Accessible to the Disabled
  • Court of Appeals Clarifies Process for Satisfying Utsey Standing Requirements
  • Local Code Interpretation Independent of Permit is not a Justiciable Controversy
  • Alterations in Nonconforming Uses Allowed Under ORS 215.130(5) Only When Required by Law
  • Court of Appeals Clarifies Key Condemnation Appraisal Exchange Requirement
  • In Michigan Condemnation Case, Property Owners Win the \93Public Purpose\94 Battle, But Suffer Some Collateral Damage


October 2004

  • The Digest at Twenty-Five
  • Lenders in Mortgage Transactions Can Seek Recovery Under Bonds
  • D\E9j\E0 Vu: News from La Tush
  • Ninth Circuit Upholds Oregon’s Mass Gathering Act
  • Court of Appeals Discusses Interim Transportation Facility Failures
  • Relief Under FED Action Elusive When No Landlord-Tenant Relationship Exists
  • Notice of Land Use Condition Must be Reasonably Available, Says New Jersey Court

September 2004

  • Legislature Changes Condemnation Code in Two Key Areas
  • Ninth Circuit Upholds San Francisco Hotel Conversion Ordinance Against Takings Claim
  • Lake Oswego Exaction Withstands Dolan Challenge
  • U.S. Supreme Court Applies ADA to State and Local Governments
  • Court of Appeals Adds Gloss to Practical Effect Requirements for Standing Under Utsey
  • Federal Court Denies Takings Claim on Oregon Land
  • Texas Supreme Court Finds Taking in Road Construction Requirements
  • Lake Tahoe Landowners and Developers Lose Another Round

June 2004

  • The “Substantial Burden” Under RLUIPA Gets Heavier to Bear
  • U.S. District Court Addresses Aesthetic Considerations in Siting Cell Towers Under the Telecommunications Act
  • Who Breached First? A Land Sale Contract Cuts Both Ways
  • Use of “Testers” to Enforce Fair Housing Laws Allowed
  • Hawaii Federal District Court Finds RLUIPA Constitutional

April 2004

  • Ninth Circuit Reviews Oregon Billboard Law
  • More on Limited Land Use Decisions, And When Such Decisions Exist
  • Court of Appeals Refines Goal
  • Conflicting Use Analysis
  • I Think That I Shall Never See a Billboard Lovely as a Tree \97 At Least Not in Gladstone
  • New Gas Pipeline Fuels Debate Over Rules for Siting Energy Facilities on Farmland
  • Property Damage Cap in ORS 30.270(1)(a) Applies Separately to Tenants by the Entirety
  • LUBA Finds RLUIPA Not Violated by Prohibition Against Churches on EFU Land

February 2004

  • Ninth Circuit Finds Waiver of No-Cosigner Policy is a Reasonable Accommodation Under the Fair Housing Amendments Act
  • Ninth Circuit Finds Pedestrian Mall a \93Public Forum\94
  • Land Use Appeals do Not Extend Time Limitations on Permit Validity
  • Court Clarifies Farm Road \93Maintenance\94 Exemption to Fill-Removal Permit Requirement
  • Oregon Court of Appeals Looks at Public Use Requirement for Inverse Condemnation and Relationship to Tort Claims Act


December 2003

  • 2003 Oregon Legislation
  • Regulatory Takings Made Easy
  • From On High: Don\92t Fight City Hall on an LID Assessment
  • A Tentative Decision is \93Final\94 After a Hearing is Canceled
  • Court Upholds \93Hours of Operation\94 Restrictions on Sexually Oriented Businesses
  • Court of Appeals Upholds Legality of Reimbursement Districts
  • Federal District Court Holds RLUIPA Violates 14th Amendment

October 2003

  • Federal Supreme Court Allows Local Government to Bar Persons from Public Housing Sites
  • California Transportation Department Can\92t Limit Allowed Signs to Flags, Says Ninth Circuit
  • Settlement Agreement Informally Approved in Executive Session is Void
  • Florida Appellate Court Upholds Measure-7-Type Statute
  • LUBA Upholds Constitutionality of RLUIPA

August 2003

  • Court Abandons \93Clearly Erroneous \94 Deference Standard
  • Court of Appeals Agrees that All Annexations are \93Land Use Decisions\94
  • Ninth Circuit Approves Title Insurance Discounts Based on Economies of Scale and Other Economic Factors
  • Condominium Owners Can Bring Private Contract Claims on Behalf of Unit Owners
  • Court of Appeals Holds Bridge Closure Not Inverse Condemnation Despite Impact on Nearby Private Property
  • South Carolina Court Finds No Taking in Denial of Coastal Development Permit

June 2003

  • IOLTA Survives Constitutional Challenge
  • Federal Supreme Court Finds No Unconstitutionality in Fair Housing Claim
  • Immunity Under Noerr-Pennington Doctrine Extends to State Law Tort Claims
  • Failure to Assign Error is Not Fatal in Raising Issue Before LUBA
  • Ninth Circuit Finds Challenge to Lake Tahoe Plan Barred by Res Judicata
  • New Jersey Supreme Court Finds Mount Laurel Decision Still Effective

April 2003

  • Court of Appeals Applies Utsey v. Coos County Standing
  • Ninth Circuit Upholds RLUIPA in California Prison Case
  • Federal District Court Declines to Dismiss ESA Takings Suit Brought Against Oregon State Forester
  • California Coastal Commission Violates Separation of Powers Doctrine, Says California Appellate Court

March 2003

  • Credits Against System Development Charges May, But Do Not Necessarily, \93Run with the Land\94
  • Federal Circuit Finds No Taking in Application of Spotted Owl Rule
  • Washington Supreme Court Deals with Takings, Substantive Due Process, and Statutory Authorization of Plat Conditions
  • LUBA Recognizes Right to Appeal Tentative County Decisions After Local Appeals are Withdrawn Mid-Stream


December 2002

  • Lessee Avoids Eviction for Unilateral Mistake In Late Payment of Rent
  • Selection and Payment Of Hearings Officer Violates Due Process,Says California Court
  • Cert.Petition Pending In Oregon Takings Case
  • Oregon Court Of Appeals Upholds Nude Dancing Buffer Oregon Supreme Court Decides A Takings Case and Refines Defense Of Discretionary Immunity
  • Court Rules \93Unit Of Property\94 In Ballot Measure 50 Means Both Land and Improvement
  • Oregon Court Of Appeals Interprets \93View Easement\94 Narrowly

October 2002

  • Oregon Supreme Court affirms Invalidation of Measure 7
  • RELU Online
  • Court Strikes Down County Tet for Non-Farm Lot of Record Dwelling
  • Bonding Company Wins Battle Over Construction Lien, but Loses War Over Attorney Fees
  • New Takings Decisions from LUBA
  • LUBA Affirms Non-farm Dwelling Approval

July 2002

  • State appeals court again weighs ODOT\92s authority over access
  • Vested rights and non-conforming use rights are \93inextricably related\94
  • Split United States Supreme Court remand adult zoning case
  • Federal Supreme Court finds no taking in thirty-two month moratorium
  • District Court upholds RLUIPA as constitutional
  • LUBA awards attorney fees against city

May 2002

  • Dotting the i\92s and Crossing the t\92s on the UGB, or \93How I Learned to Love Form for the Sake of Substance.\94
  • 20-Day Notice Required for LUBA Remand.
  • An Easement By Any Other Name.
  • New Decision on Remand May Be Adopted Without a Hearing.

February 2002

  • Declining Right to Compensation in Condemnation Proceeding Results in Extinguished Contract Rights in Condemned Property
  • Denial of Direct Access to State Highway Does Not Support Claim for Relief
  • Columbia Gorge Commission Requires Complete Application Materials as a Condition of Approval
  • ODOT at LUBA: Is This Now a Two-Way Street?


December 2001

  • Court of Appeals Changes Standing Requirements for Appeal from LUBA Decisions
  • Free Speech and Substantial Evidence Arguments Insufficient to Overturn Rejection of Late Night
  • Operation for Video Store
  • Court of Appeals Applies Hornbook Law to Complicated Facts in Land Sale
  • New Legislation

October 2001

  • UGB Amendment Based on Subregional Need Fails to Meet Evidentiary Burden
  • Technical Requirements Not Imposed for Reinstatement of Time Essence Provision
  • United States Supreme Court Majority \93Finds\94 New Takings Law
  • Washington Court of Appeals Strikes a Blow to Regional Planning

August 2001

  • No Escrow Agent License Necessary to Engage in Certain Activities Related to Residential Refinancings
  • Landlord May Pursue Separate Lawsuits for Possession and for Unpaid Rent
  • Prescriptive Easement Must be Adverse to Land Owner\92s Use
  • Oregon Federal Court Deals with Constitutional Claims Against Multnomah County

June 2001

  • Stipulated Judgment Cannot Nullify Lease Requirements Under Public Housing Regulations
  • Court of Appeals Confirms that Applicants Can Control Their Own Finality
  • Utilization of Easement Limited to Minimum Use Reasonably Necessary
  • United States Supreme Court Holds Corps of Engineers\92 Rules Exceed Its Jurisdiction

March 2001

  • Measure 7 Update
  • City Does Not Have to Compensate Citizens for Destroying Private Property
  • 9th Circuit Invalidates Targeted Sensitive Use Veto in Adult Use Case
  • Vested Rights and Nonconforming Uses

February 2001

  • Swim at Your Own Risk
  • Automatic \93Reversion\94 to Comprehensive Plan Map Designation is Invalid
  • Court of Federal Claims Finds Taking in Temporary Denial of Mineral Rights
  • Congress Passes (And the President Signs) Religious Land Use and Institutionalized Persons Act of 2000


October 2000

  • 9th Circuit Decides Significant Takings Case
  • Interpreting Purchase and Sale Agreements: Innocent Misrepresentation or Mutual Mistake?
  • Farm and Forest Lands
  • United States Supreme Court Opposes Nude Dancing Ban

August 2000

  • County Vacation Within City Limits Applies City Standards to This Land Use Decision
  • If the Claim\92s Not Ripe, It\92s Not Going Forward
  • Third Circuit Finds Cognizable Substantive Due Process Claim in Local Zoning Case
  • Federal Supreme Court Affirms Seventh Circuit\92s Determination of Equal Protection Violation in Local Government Exaction

May 2000

  • Evidence Affecting Property Value That Is Discovered After A Condemnation Action Is Filed Is Admissible
  • Threats to Agent of Corporate Landlord are Sufficient Basis for Terminating Tenancy
  • Klan Not Entitled To Participate In \93Adopt-A-Highway\94 Program Says Missouri Federal Court

February 2000

  • Unless You Have a Solid Defense to a Mandamus Action, Take Your Lumps and Move On With Life
  • It Takes More than Substantial Evidence to Rebut a Rebuttable Presumption
  • Ninth Circuit Interprets Federal ADA and Rehabilitation Act in Local Zoning Ordinance