Basic HTML Version
By Laurie Butler, HBA GALA chair
Inside
Line
Your
Industry
LEGISLATION • GOVERNMENT AFFAIRS • POLITICS •
OCTOBER, 2012
• PAGE 9
HBA
News
HOME BUILDING
HBA
PDX
.
ORG
PROTECTING
The tri-county area is governed
by a regional government known
as “Metro.” Metro’s responsi-
bilities include working with all
27 jurisdictions in the tri county
area to make sure that they are ad-
equately planning for their growth
through redevelopment, infill de-
velopment and expansions of the
Urban Growth Boundary (UGB).
Each jurisdiction is challenged
with helping to plan that growth
to meet guidelines established by
Metro and the State.
The City of Portland has long
advocated to Metro that it can
accommodate expected growth
through infill housing and redevel-
opment thus reducing the need for
any UGB expansions. Yet the infill
builders that work in the City of
Portland constructing new homes
are constantly being challenged
by roadblocks put in place by the
city in response to the resistance of
neighborhood groups. The city has
not done an adequate job of edu-
cating the neighborhood groups
and the general public about the
goals that it is responsible to Metro
for or the perception of how they
will achieve those. A reasonable
conclusion to these conf licting
practices is that the City of Port-
land appears to be sabotaging its
own success and subsequently
cannot meet its goals for growth.
Here is an example of the “sabo-
tage.” We can call this the mid-
block street improvement issue.
Currently the Portland Bureau of
Transportation and the Bureau of
Environmental Services (PBOT
and BES) ask builders to fully de-
velop streets, sidewalks and swales
in conjunction with accessing one
single building permit, regard-
less of the street’s current con-
figuration or future development
potential. The improvements are
extremely expensive when they
are done one lot at a time costing
the builders upwards of $25,000
in actual hard improvement costs.
This compares to an average cost
of only $15,500 per lot if the im-
provements were done over the en-
tire block. Also this makes for an
esthetically unpleasing patchwork
of partially improved streets in
many areas which often deteriorate
over time due to the inconsisten-
cies between improved and non-
improved streets. This is one of
the primary reasons that lots which
could be developed in Portland to
accommodate growth sit vacant or
have an unsightly home still stand-
ing that should be demolished.
In addition to the hard improve-
ment costs the City of Portland
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Oregon Update
“Housing is no longer a drag.”
Oregon’s housing market
continues to bump along on a
slightly upward track, with the
Portland area still doing bet-
ter than the rest of the state.
—See page 11
Around The Region
tree policy and regional issue updates, po-
tential credit voucher incentives to be trans-
ferable, canby to update transportation and
parks fees and more!
—See page 11
By William R. Joseph,
HBA Associate Director Dunn
Carney Allen Higgins & Tongue LLP
The Oregon Court of Appeals
reminds local governments
that there must be a relation-
ship (“nexus”) between con-
ditions imposed on develop-
ment and the public policies
those conditions are meant to
advance.
In
Brown v. City of Medford
, 2012,
the Oregon court of Appeals pro-
vided an important reminder to
local governments that condi-
tions imposed on developments
must be reasonably related to the
public policies they are intended
to advance.
In this case, plaintiff Brown
applied to the city of Medford
to partition a parcel into two
lots which would have access
on Finley Lane to the north. the
city had previously approved an-
other subdivision to the south of
Brown’s parcel with a condition
that the developer dedicate and
improve a half-width street, Brady
Way, on its northern boundary,
directly adjacent to the south-
ern boundary of Brown’s parcel.
Although the two lots proposed
on Brown’s parcel would not ac-
cess Brady Way, the city imposed
a condition requiring that Brown
also dedicate 19 feet of public
right-of-way along the south
side of his parcel in order to ac-
commodate Brady Way. the city
justified the condition by saying
it would foster such public poli-
cies as improving transportation
connectivity, allowing for more
urban-like parking and utility
services, and enhancing safety
by lowering emergency response
times.
the Medford city council af-
firmed the condition on appeal
and Brown sought review by the
Jackson county circuit court,
claiming a taking under Article I,
section 18, of the Oregon consti-
tution and the Fifth Amendment
of the US constitution. the circuit
court upheld the condition but
awarded Brown $15,000 in dam-
ages as compensation for the
dedicated portion of the parcel.
the city appealed to the Or-
egon court of Appeals, arguing
that there was a “nexus” between
the condition requiring the dedi-
cation and the city’s policies
sought to be advanced and, as
such, the compensatory award
was unwarranted. the analy-
sis arises from two US Supreme
court decisions,
Nollan v. Califor-
nia Coastal Comm’n
, 483 US 825
(1987), and
Dolan v. City of Tigard
,
512 US 374 (1994), which together
established a two-part test for as-
sessing the constitutionality of a
government exaction of a dedi-
cation of private property: First,
the exaction must substantially
advance the same government
interest that would furnish a valid
ground for denial of the devel-
opment permit--also known as
the “essential nexus” prong of
the test. Second, the nature and
extent of the exaction must be
“roughly proportional” to the
impact of the proposed develop-
ment.
In
Brown
, the Oregon court of
Appeals clarified that the nexus
question cannot be answered
merely by finding some connec-
tion between the condition and
the public policies sought to be
advanced no matter how tenu-
ous. rather, the question was
“whether the exactions substan-
tially advanced the same inter-
ests that land-use authorities as-
serted would allow them to deny
the permit altogether.” the court
could not find anything in the re-
cord suggesting that Brown’s pro-
posed partition would have any
direct or indirect effect on Brady
Way, as his parcel did not access
Brady Way. the court also found
the city failed to identify specific
code provisions that would have
allowed it to deny the project
but for the dedication condi-
tion. rather, the city pointed to
general safety and connectivity
objectives that bore no relation-
ship to Brown’s particular parti-
tion. As such, the court found no
essential nexus and affirmed the
trial court’s decision awarding
compensatory damages for the
taking.
As such, the
Brown
case serves
as an important reminder that
local governments’ practice of
forcing developers to build pub-
lic improvements as a condition
of development is only consti-
tutionally permissible when the
improvements are necessary to
satisfy the specific criteria re-
quired to be met to issue the per-
mit in question. So, for instance,
the mere fact a street is planned
for in an adopted transportation
plan is insufficient to support a
condition requiring a developer
to dedicate property to accom-
modate the street or otherwise
participate in the construction
of the street where the develop-
ment will itself have no impact on
the street. to put it another way,
simply establishing a transporta-
See INSIDE LINE/ page 10
See APPEALS/ page 11
Brown v. City of Medford is an important
reminder not to overburden development
NOVEMBER 6 I S ELEC T ION DAY
The HBA asks youmark your calendars and get out and vote!
the HBA’s Government relations & Political Action commit-
tee has met with many of the candidates in key races around the
Portland Metro region. Below is the list of candidates whom the
HBA of Metropolitan Portland and/or the OHBA has endorsed.
these candidates were chosen for their pro-business platforms
or their ability to effect change in their respective area.
If you would like more information on any of these candidates
or would like to offer help in terms of signage locations, fundrais-
ing or any other campaign related item, please contact Justin W.
at the HBA.
HBA of Metropolitan Portland endorsements:
• charlie Hales – Portland Mayor
• Mary Nolan – Portland city council
• John Ludlow – clackamas county chair
• Jamie Damon – clackamas county commissioner
• Kieth Mays – city of Sherwood Mayor
• richard Goddard – city of Wilsonville Mayor
• Monica Keenan – city of Wilsonville councilor
• Eric Postma – city of Wilsonville councilor
• Nick Wilson – city of tigard Mayor
• Monique Beikman – city of tualatin councilor
• Skip O’Neill – city of Lake Oswego councilor
• Bill tierney – city of Lake Oswego councilor
• Dan Williams – city of Lake Oswego councilor
• Allen Springer – Yamhill county commissioner
OHBA endorsements:
• Jim Weidner – r Yamhill county, House District 24
• John Davis – r Wilsonville, House District 26
• tobias read – D Beaverton, House District 27
• Jeff Barker – D Beaverton, House District 28
• Katie Eyre Brewer – r Hillsboro, House District 29
• Shawn Lindsay – r Washington county, House District 30
• Brad Witt – D Scappoose, House District 31
• Julie Parrish – r West Linn, House District 37
• chris Garrett – D Lake Oswego, House District 38
• Bill Kennemer – r Oregon city, House District 39
• Steve Newgard – r Gladstone, House District 40
• Matt Wand – r troutdale, House District 49
• Greg Matthews – D Gresham, House District 50
• Patrick Sheehan – r clackamas county, House District 51