Christopher Tackett-Nelson

9th Circuit Court of Appeals (10 summaries)

Chula Vista Citizens v. Norris

A requirement that the official proponent of an initiative be an elector does not violate the First Amendment right to freedom of speech of non-natural persons (i.e., corporations and associations); furthermore, a requirement that the name of the official proponent be published with a notice of intent and summary of the initiative withstands exacting scrutiny under the First Amendment because it bears a substantial relationship to electoral integrity, a sufficiently important governmental interest.

Area(s) of Law:
  • Civil Rights § 1983

Barnett v. Norman

Where a “necessary and material” witness refuses to testify (notwithstanding constitutional, statutory, or common-law rules that bar the testimony), a judge must attempt to encourage the testimony—or explain on the record why no attempt was made—and cannot permit witnesses to opt out of testifying.

Area(s) of Law:
  • Civil Rights § 1983

Maldonado v. Holder

The Convention Against Torture does not place the burden on the petitioner to prove that internal relocation is impossible with regard to internal relocation and deferral of removal proceedings; also, such evidence, if relevant, must be considered when assessing whether it is more likely than not that a petitioner will be tortured if removed.

Area(s) of Law:
  • Immigration

Ali v. Rogers

A district court lacks subject matter jurisdiction over claims brought against a private individual when the claims are required to be brought against the United States pursuant to the Public Vessel Act and Suits in Admiralty Act.

Area(s) of Law:
  • Admiralty

Picot v. Weston

A district court may properly dismiss a diversity action for lack of specific personal jurisdiction when a defendant neither purposefully avails his or herself of the privilege of conducting activities in the forum state, nor aims his or her conduct at the forum state.

Area(s) of Law:
  • Civil Procedure

Northstar Fin. Advisors v. Schwab Inv.

Adoption of a mutual fund’s fundamental investment objectives is sufficient to form a contract between shareholders and the fund itself, particularly when those objectives are subsequently incorporated into the fund’s registration statement and prospectuses.

Area(s) of Law:
  • Contract Law

In re Online DVD Rental Antitrust Litigation

Certification of a settlement class under Fed. R. Civ. P. 23(a) and (b) may be proper even when class representatives receive incentive awards; a claimant fund sharing approach may be proper even when few class member actually filed claims; and, award of attorneys’ fees under the Class Action Fairness Act provisions governing “coupon settlements” generally do not apply to settlements to be paid in gift cards.

Area(s) of Law:
  • Civil Procedure

Hernandez-Gonzalez v. Holder

A conviction for weapons possession with a gang enhancement under California law does not constitute a crime involving moral turpitude per se; rather, such a “determination must be based on the underlying crime of conviction to which the enhancement is attached at sentencing.”

Area(s) of Law:
  • Immigration

Volpicelli v. United States

The nine-month limitations period pursuant to 26 U.S.C. § 6532(c) is not jurisdictional and may be equitably tolled.

Area(s) of Law:
  • Tax Law

United States v. Davis

Under the 2010 retroactive amendments to the Sentencing Guidelines, a district court lacks jurisdiction to modify a sentence based upon a Fed. R. Crim. P. 11(c)(1)(C) plea agreement where the agreement does not: (1) require sentencing within a Guidelines range; (2) make clear that a Guidelines range served as the basis for the specified term; and, (3) show that “a sentencing range is evident from the agreement itself.”

Area(s) of Law:
  • Criminal Law

Land Use Board of Appeals (30 summaries)

Burgermeister v. Tillamook County

A local government’s findings in support of a land use decision must identify relevant approval standards, set out facts believed and relied upon, and explain how those facts underpin the decision, and, pursuant to ORS 197.835(11)(b), LUBA will not affirm a decision based on insufficient findings except where a finding of compliance with the applicable criteria is either obvious or inevitable. See Heiller v. Josephine Cnty., 23 Or LUBA 551 (1992); see also Marcott Holdings, Inc. v. City of Tigard, 30 Or LUBA 101 (1995) and Terra v. City of Newport, 36 Or LUBA 582 (1999).

Area(s) of Law:
  • Land Use

Trautman v. City of Eugene

Under Eugene Code (EC) 9.8320(5), the city must find that a planned unit development (PUD) provides safe and adequate transportation systems through compliance with EC 9.6800 through EC 9.6875 (standards for streets, alleys, and other public ways), and where the city determines that because streets, alleys, and other public rights of way to be dedicated to the public by the applicant as a condition of development will meet minimum city standards prior to the city's acceptance of them, the standards of EC 9.6800 through EC 9.6875 will be deemed met and the PUD will be deemed to meet the requirements of EC 9.8320(5).

Area(s) of Law:
  • Municipal Law

Forest Park Neighborhood Association v. Washington County

Pursuant to Statewide Planning Goal 2 (Land Use Planning), legislative land use decisions must be supported by an "adequate factual base" (functionally equivalent to the substantial evidence standard applicable to review of quasi-judicial decisions), and where a reasonable person could not reach the same conclusion as the local government based on the evidence in the record, LUBA will hold such a decision as lacking the necessary evidentiary support.

Area(s) of Law:
  • Land Use

Pinnacle Alliance Group LLC v. City of Sisters

Under ORS 197.830(3), a petitioner must establish how land uses authorized by a local government's administrative extension of a master plan for a mixed use development adversely affects its interests, and where a petitioner asserts an impact without any explanation as to why the impact is adverse and how the decision results in an adverse impact, such an assertion will be deemed insufficient to establish standing under ORS 197.830(3).

Area(s) of Law:
  • Land Use

Pinnacle Alliance Group LLC v. City of Sisters

Pursuant to ORS 197.835(11)(b), LUBA may overlook minor discrepancies in a local government's findings; however, the statute does not permit LUBA to overlook a local government's total failure to adequately identify any findings, particularly when it is unclear in the record as to which document comprising the alleged findings the local government relied upon in making its decision.

Area(s) of Law:
  • Land Use

Woodward v. Jackson County

Pursuant to ORS 195.318(1), a local government's application of certain local land use regulations to approve a subdivision or partition of property or the establishment of one or more dwellings on a property under sections 5 to 11 of Ballot Measure 49 (2007) is not a "land use decision" as defined at ORS 197.015(10)(a)(A), and where a local government makes such a determination LUBA will lack jurisdiction to hear appeals thereof.

Area(s) of Law:
  • Land Use

Altamont Homeowners Association v. City of Happy Valley

Notwithstanding Clackamas County's status as a party to the Urban Growth Management Agreement (UGMA) between Oregon City and the county, the county's status as a party to the UGMA does not automatically satisfy the statutory obligation under ORS 222.125 that the city obtain written consent from the county before annexing county property.

Area(s) of Law:
  • Municipal Law

Laurel Hill Valley Citizens v. City of Eugene

Pursuant to the "exhaustion-waiver" principles articulated in Miles v. City of Florence, 190 Or App 500 (2003), where local appeal regulations require specification of the issues on appeal, a petitioner must first specify an issue on local appeal in order to preserve that issue before LUBA, and where a petitioner fails to do so the issue will be deemed waived.

Area(s) of Law:
  • Land Use

Chapman and Chapman LLC v. Coos County

Under OAR 661-010-0015(1)(a), a notice of intent to appeal (NITA) must be filed within 21 days of a local government's final decision, and where a petitioner files a NITA through a filing method other than "registered or certified mail," pursuant to OAR 661-010-0015(1)(b) the date of filing will be the date that LUBA actually receives the NITA (as opposed to the date that the NITA is mailed as applies to filings by registered or certified mail).

Area(s) of Law:
  • Land Use

Fernandez v. City of Portland

When reviewing substantial evidence challenges to critical findings of fact, the standard that LUBA is required to apply is whether the local government’s findings are supported by the evidentiary record, viewed as a whole, and in reviewing such challenges LUBA cannot reweigh evidence or assess whether it would have adopted the same findings but must rather determine whether the findings were “reasonable” based on the evidence presented; where a local government’s findings are supported by credible expert evidence that contradicts contentions to the contrary, the local government’s findings will likely be deemed supported by substantial evidence. See, e.g., Younger v. City of Portland, 305 Or 346 (1988); Dodd v. Hood River County, 317 Or 172 (1993); and, 1000 Friends of Oregon v. Marion County, 116 Or App 584 (1992).

Area(s) of Law:
  • Land Use

McLoughlin Neighborhood Association v. City of Oregon City

The “significant impacts” test operates only where no land use regulation, comprehensive plan provision, or statewide planning goal applies to the challenged decision but, nevertheless, the decision actually changes present or future land uses; where a petitioner invokes the significant impacts test, that petitioner must identify the non-land use standards that allegedly apply to the decision (and would be the subject of LUBA’s review) and demonstrate that those standards have some relationship to or bearing on land use, otherwise the significant impacts test will not be met. See, e.g., Northwest Trail Alliance v. City of Portland, __ Or LUBA __ (LUBA No. 2015-015, June 3, 2015).

Area(s) of Law:
  • Land Use

Emerald Cove LLC v. City of Lincoln City

Petitioners seeking review by LUBA have the burden of establishing that LUBA has jurisdiction; accordingly, when a petitioner cannot carry its burden, that petitioner's appeal will be dismissed.

Area(s) of Law:
  • Land Use

J. Conser and Sons LLC v. City of Millersburg

When a local government denies an application for a planned development, that decision must include findings sufficient to apprise the applicant of what steps might be taken to obtain approval or inform the applicant that it is unlikely the application will be approved.

Area(s) of Law:
  • Land Use

Oregon Coast Alliance v. Curry County

Pursuant to OAR 660-033-0130(2)(a), no enclosed structures or group of structures that exceed a "design capacity" of 100 people may be approved by a local government within three miles of an urban growth boundary, and where a local government finds that the cumulative design capacity of structures on a proposed golf course will not exceed 100 people, the proposed golf course will be deemed compliant.

Area(s) of Law:
  • Land Use

Grabhorn Inc. v. Washington County

Pursuant to Oregon v. Portland Gen. Elec. Co., 52 Or 502 (1908), a petitioner bringing an equitable estoppel claim against a local government must establish that (1) the local government made a false representation; (2) the false representation was made with knowledge of the facts; (3) the petitioner was ignorant of the truth; (4) the false representation was made with the intention that it should be acted upon by the petitioner; and (5) the petitioner was induced to act upon the false representation; where any one of the elements are not met, estoppel will not lie against the local government.

Area(s) of Law:
  • Land Use

Meyer v. Jackson County

Under Jackson County Land Development Ordinance (LDO) 11.2.1(A) an existing nonconforming use may be changed "to another, no more intensive nonconforming use" if "the proposed new use will have no greater adverse impact on the surrounding neighborhood[,]" and where a change from a nonconforming concrete batch plant to a nonconforming asphalt batch plant results in a greater risk of fire and explosion to a surrounding neighborhood it will be deemed to have a greater adverse impact on the surrounding neighborhood.

Area(s) of Law:
  • Municipal Law

Kine v. City of Bend

Under OAR 661-010-0039, a reply brief must be filed within seven days of the date a response brief is filed; however, if a filing deadline occurs on a state or federal legal holiday, OAR 661-010-0075(8) permits a reply brief to be filed on the "next working day."

Area(s) of Law:
  • Land Use

Jubitz Corp. v. Marion County

The deadline for filing a petition for review under OAR 661-010-0030(1) is strictly enforced, and failure to file a petition for review within 21 days after the date the local record is received or settled by LUBA, and any extensions of that time under OAR 661-010-0067(2), requires that a petition for review be dismissed.

Area(s) of Law:
  • Land Use

Head v. Lane County

Lane Code (LC) 16.211(3)(n)(v) provides, in part, that a proposed home occupation shall not "unreasonably interfere with uses permitted by the zoning of nearby lands" and where a home occupation is determined to likely cause a "significant change in the normal environment of a neighborhood" it will be deemed to constitute an unreasonable interference under LC 16.211(3)(n)(v).

Area(s) of Law:
  • Municipal Law

Stone Age Republic, LLC v. City of Grants Pass

ORS 197.830(9) provides a strict 21-day deadline after the date of a local government's final decision for filing a Notice of Intent To Appeal with LUBA, and where a petitioner relies on a local government's erroneous statement as to the filing deadline, that reliance will not toll the strict 21-day appeal period, regardless of the reasonableness of the petitioner's reliance on the local government's erroneous statement.

Area(s) of Law:
  • Land Use

Sears v. City of Cannon Beach

An action subsequent to adoption of a challenged decision that supplants, revokes, or rescinds the decision may render an appeal to LUBA moot (e.g., an appeal may be moot if the local government withdraws the decision challenged in the appeal).

Area(s) of Law:
  • Land Use

Pennock v. City of Bandon

Under ORS 197.835(3), LUBA's review is limited to the record unless one of the circumstances identified in ORS 197.835(4) applies; when a party relies upon extra-record evidence, that party must argue that one of the circumstances identified in ORS 197.835(4) applies or, absent such an argument, LUBA's review will remain limited to the record.

Area(s) of Law:
  • Land Use

Stop the Dump Coalition v. Yamhill County

ORS 215.296(1) requires a local government to find that a proposed use will not force significant changes in accepted farm practices, or significantly increase the cost of such practices, on land surrounding the use; in evaluating potential forced changes or cost increases, a local government cannot disregard opponent testimony merely because the testimony does not quantify a cost increase or the precise nature and extent of changes in accepted farm practices, nor can a local government shift the burden of demonstrating noncompliance with ORS 215.296(1) to the opponent.

Area(s) of Law:
  • Land Use

Lowry v. City of Portland

Pursuant to OAR 661-010-0030(1), a petition for review must be filed with LUBA "within 21 days after the date the record is received or settled by [LUBA]" and a failure to timely file a petition for review, or an extension under OAR 661-010-0067(2), "shall result in dismissal of the appeal and forfeiture of the filing fee and deposit for costs to the governing body[.]"

Area(s) of Law:
  • Land Use

Gould v. Deschutes County

In determining whether failure to comply with conditions of approval are the "fault of the applicant" under Deschutes County Code (DCC) 22.36.020(A)(3), the county's decision to limit its consideration to the complexity of the county's multi-step destination resort approval process is an implausible interpretation of the DCC.

Area(s) of Law:
  • Municipal Law

Delta Property Company v. Lane County

LUBA must affirm a local government's interpretations of its own land use legislation unless the interpretation is not "plausible" according to the Supreme Court's decision in Siporen v. City of Medford, 349 Or 247 (2010), or unless one of the exceptions set out in ORS 197.829(1) apply.

Area(s) of Law:
  • Land Use

Sage Equities LLC v. City of Portland

Under Fasano v. Washington County, 264 Or 574 (1973), a petitioner is entitled to an opportunity to respond to new evidence, and where a local government introduces evidence that represents a new issue, a petitioner must be given an opportunity to address the new issue before the local government makes a decision based thereupon; nevertheless, even if a local government makes a decision without giving a petitioner opportunity to address the new issue, such a procedural error requires remand under OAR 661-010-0071(2) rather than reversal under ORS 197.835(10)(a)(A).

Area(s) of Law:
  • Land Use

Bishop et al v. Deschutes County

A local government's decision is excluded from the definition of a "land use decision" under ORS 197.015(10)(a) if the decision requires future land use review pursuant to ORS 197.015(10)(b)(H)(iii).

Area(s) of Law:
  • Land Use

Group B, LLC v. City of Corvallis

Under ORS 197.307(4), “a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of needed housing on buildable land” and where a local government must interpret a provision of a land use regulation such a land use regulation is not clear and objective unless the local government proves otherwise.

Area(s) of Law:
  • Land Use

Truth in Site v. City of Bend

Plats are not “land use regulation[s]” under ORS 197.015(11), and are therefore are not reviewable by LUBA under ORS 197.828(2)(b) because challenges based thereupon provide no basis for reversal or remand of the decision.

Area(s) of Law:
  • Land Use