And placing land in a rural reserve makes it likely that such land will not urbanize over the next 50 years. The legislature, local and regional governments, and public interest groups characterized these actions as nothing more than a mediated settlement with the parties to the lawsuit resulting in an outcome that was consistent with initial predictions. This does not change the fact that it was the legislators, rather than local governments, drawing colored lines on a map. Often these supplicants and the legislative leaders will assert that the UGB and reserves processes are just too complex and need to be simplified.
Yet these parties might consider their own roles in shaping these processes. In addition, instead of allowing the Land Use Board of Appeals LUBA to review these decisions, the legislature specifically directed that review to LCDC, a government-friendly forum that did not work as hard to consider those pesky legal questions that occur in making land use decisions.
Both left it to the Court of Appeals to weigh the reserves decision against the criteria and were duly shocked and appalled with the result. It is far easier to blame the process and other participants than to fess up to admitting to the source of the complexities in that process. While both the UGB and reserves processes are difficult and are supposed to be difficult as the decisions are significant and long-lasting , on what basis can the legislature turn down similar requests for imposition of a legislative solution in Woodburn, Bend or McMinnville which have similarly complex decisions?
Will the watchdogs and the environmental community continue to be coy about the application of raw political power to make local planning decisions on the ground? The quickest and easiest decision is not always the best one. The legislature may yet rue the day it stepped in to impose its will in the reserves case. It will be difficult to deny the second supplicant, much less the third, fourth and others.
Assessment & Taxation | Multnomah County
In Relling v. Khorenian, plaintiff filed a declaratory judgment seeking to establish an easement over the defendant's properties for access. Plaintiff purchased property from N-C-W, Inc. NCW pursuant to a land sale contract in The fulfillment deed was recorded in , after adjacent parcels had been transferred to others. Instead, the court held plaintiff to his plea that the landlocked nature of his property warranted granting an easement of necessity.
The Court held that three factors must be present in order to award an easement of necessity: 1 unity of title in the grantor; 2 severance of ownership; 3 actual necessity. The facts indicated that plaintiff had multiple access points from other adjacent properties at the time of severance that did not rely on use of the logging road crossing defendant's properties. Therefore, the court held that actual necessity was not present on these facts.
Relling v. Who cares about the highest and best use of a property? Well, appraisers certainly care, and when a property ends up in litigation, the judge cares. Understanding how these authorities determine value will make it clear that commercial property owners should care about highest and best use, too.
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I learned the importance of highest and best use during my first year at the Department of Justice, in a small condemnation or government taking case. The property owner had a single-family home on a prime piece of commercial real estate, and a highway expansion was bringing traffic lanes to within 12 feet of the house. The property had been rezoned commercial and was surrounded by other commercial uses.
Because the highest and best use of the property was redevelopment as a commercial site, the value for the land taken as right of way was worth more than the residential value of the entire, previously undivided property. Not all analyses of highest and best use are so simple and obvious. This is particularly true in the context of appraising an industrial property for a property tax appeal. The standard test for determining highest and best use has four prongs, and each can be critical to the valuation of the property.
That question is: What use is legally permissible, physically possible, financially feasible and maximally profitable? The first prong, what is legally permissible, refers to zoning or other governmental restrictions, as well as the deed restrictions, and the uses that those parameters allow for the property. In a recent case, a acre property was zoned industrial, which allowed for offices as an accessory use to the industrial use. Improvements included several older flex manufacturing buildings totaling close to , square feet. The condition and use of the flex buildings varied but the need to use the structures primarily for manufacturing no longer existed.
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This did not meet the test for what is legally permissible, because the zoning only allowed office as an accessory to an industrial use. What is financially feasible? In this same case, the appraiser for the Department of Revenue also failed to address if it was cost effective to reconfigure several 80,squarefoot two-story flex manufacturing facilities for multitenant use.
What is physically possible? Many of the industrial buildings in this example were interconnected. They had shared utilities, were situated on a single tax lot and offered only limited access without dedicated parking for a given building. Separation of the buildings into viable stand-alone parcels may have been prohibited by the physical location of the utilities, the placement of the buildings on the lot, or by parking, ingress and egress to the site.
The fourth prong is often the simplest to address. Of the possible uses meeting the first three facets of the highest-and-best-use test, which offers the maximum profit for the owner? Department of Revenue, the Oregon Supreme Court held that highest and best use of the property subject to evaluation is the first question that must be addressed in a credible appraisal.
This set the critical framework for valuation, and determines what other comparable properties can be used to value the subject property. These highest-and-best-use tests must be appropriately supported. In the context of an investment property, for example, would an investor deem the current use to be most productive from a financial or physical basis for the property, or would an alternative use be preferable?
If a careful highest-and-best-use analysis is done at the beginning, the appraiser can select credible comparable sales or leases for use in valuation. The property owner, in turn, will be treated fairly, whether in a tax assessment appeal or an eminent domain acquisition. Seemingly simple disputes over roadways and driveways between neighboring property owners can often explode into complicated and expensive legal battles that require the courts to blend the laws relating to easements, adverse possession, the creation of subdivisions, and the power of a county or city to accept or vacate the dedication of a roadway.
The resulting litigation often results in the litigants incurring expenses far in excess of the value of the underlying property. Moreover, the litigation can tie up the subject properties for years, depriving the property owners of the ability to convey or develop those properties. This was almost certainly the case in the recent decision in Howe v. The complicated facts can be summarized as follows. In , the Smiths subdivided a portion of their 36 acres of land in Lake Oswego.
In , Clackamas County vacated the southern portion of Skyland Drive. In , Clackamas County vacated the remainder of the Skyland Drive. Also in , the then owners of the various parcels of the land entered into an easement agreement to create reciprocal rights to use Skyland Drive for utility and roadway purposes. The easement included a recital indicating that the vacation of the roadway would result in the ownership of Skyland Drive reverting to the parties of the easement agreement with the centerline of Skyland Drive serving as the property line.
The litigation did not arise until when one of the property owners within the subdivision sought to claim ownership of the entirety of Skyland Drive as part of his attempt to further subdivide his lot. The case quickly became a complicated morass of legal claims and issues.
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The plaintiffs, owners of the properties outside the subdivision, filed a lawsuit against the owners inside the subdivision, seeking to quiet title in one-half of Skyland Drive based on the statutes governing interpretation of conveyances and vesting rules applicable upon vacation of public property ORS The plaintiffs also sought to estop the Defendants from claiming ownership of the entire road based on the recital that contained the easement agreement.
In addition, the plaintiffs sought to enjoin the Defendants from any future interference with their easement rights to Skyland Drive. One of the plaintiffs also sought to claim the southern portion of Skyland Drive through adverse possession.
Defendants argued that the original subdivision plat reflected that the Smiths the original owners of all the property intended that ownership to the entirety of Skyland Drive would revert only to property owners within the subdivision and sought declaratory relief to that effect. Defendants claimed that the recital in the easement agreement was immaterial and was insufficient to convey title to plaintiffs. The case was decided in favor of defendants on all claims after a bench trial. The defendants were awarded a portion of their attorney fees pursuant to the easement agreement.
The plaintiffs appealed. The trial court's decision in favor of the defendants on the adverse possession and easement claims, including the award of attorney fees, was affirmed. The presumption continues through subsequent conveyances.
The only exceptions to these presumptions occur 1 when, at the time of conveyance of the abutting property, the road is owned by someone other than the grantor, or 2 when the grantor expressly provides in the conveyance that he or she does not intend to convey title to the centerline of the road. The Court found that the statutory presumptions applied because the original subdivision plat and subsequent deeds conveying the properties were essentially silent with respect to the ownership of the Skyland Drive.
At the end of the day, neither the plaintiffs nor the defendants in this case appear to be winners. Their properties have been sitting under the cloud of litigation for over five years.