In reaching its first holding, that a Best interest finding is only required prior to the leasing decision, the Supreme Court rejected the premise that each phase of a project could be considered a distinct disposal of an interest in state land.  The Court found that only leases convey property interests, and thus involve disposals of interests in state land.  After a lease is issued “There are no additional property rights to be conveyed at the later phases.”   To read the decision, go here: http://courts.alaska.gov/ops/sp-6769.pdf

The case stemmed from a dispute involving the City of Riviera Beach and the owner of a floating home, Fane Lozman, who had his home towed to a City-owned marina for docking.  In an attempt to recover moorage fees and trespass damages from Mr. Lozman, the City brought a federal admiralty action against Mr. Lozman’s floating home—which is an in rem proceeding to allow the City to enforce a lien against the structure itself.  Mr. Lozman claimed the District Court lacked admiralty jurisdiction over his home, because his home was not a “vessel” under Federal law.  However, the City prevailed in District Court and was awarded several thousand dollars for moorage fees.  The Eleventh Circuit Court of Appeals upheld the District Court’s ruling, agreeing that Mr. Lozman’s home was a “vessel” under Federal admiralty law because it was capable of movement over water.

But Mr. Lozman’s home was not your typical “vessel.”  It had “no ability to propel itself,” and lacked other attributes of other structures that are considered vessels.  For example, it had no rudder or other steering mechanism, it was rectangular in shape, and relied on land-based sources for electricity.

The Supreme Court accepted review of the case and reversed the decision of the Eleventh Circuit.  The Federal law in question defines “vessel” as “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”  See 1 U.S.C. § 3.  The Eleventh Circuit read this definition quite broadly, seemingly applying it to any floating structure at all.  The Supreme Court, however, rejected this “anything that floats” approach.  The Court interpreted the word “capable” as applying “in a ‘practical,’ not a ‘theoretical,’ way.”  That is, just because a structure floats does not mean it is “capable” of being used as a means of transportation within the meaning of the statute.  The Court generally held that a structure does not qualify as a “vessel” under this definition “unless a reasonable observer, looking to the home’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.”

While this “reasonable observer” test is imprecise, the Court’s decision provides some guidance on what kind of structures may be within reach of the Federal government’s admiralty jurisdiction, and which structures are principally subject to state or local regulations.

The author of this post assisted with the representation of Mr. Lozman.

Lead’s adverse effects on people, particularly young children, have been reasonably well understood for decades.

Children afflicted by lead poisoning can suffer permanent brain and nervous system damage. This can lead to a lower IQ, anemia, slower growth, and behavior, learning and hearing problems.

Afflicted adults can suffer nervous system effects, cardiovascular effects, increased blood pressure and incidence of hypertension, decreased kidney function and reproductive problems. Pregnant women with elevated lead levels are at greater risk of miscarriage, reduced fetus growth and premature birth.

Because of this, lead is highly regulated. The Occupational Safety and Health Administration limits exposure in workplaces. In homes and multifamily residences, disclosures are required in transactions involving spaces where lead-based paint may be present, and strict standards exist for renovations and repairs that may disturb lead-based paint.

Lead is regulated as a pollutant under the Clean Water Act and as a common and toxic pollutant under the Clean Air Act. The Safe Drinking Water Act limits lead in drinking water and the 2008 Consumer Product Safety Improvement Act regulates lead levels in children’s products. Lead also is regulated as a hazardous waste and as a hazardous substance, often driving cleanup decisions at contaminated properties. The basic purpose of all these regulations is to prevent harmful exposures to lead.

Regulatory agencies have hardly been shy about taking enforcement actions when businesses fail to meet applicable standards, drawing further attention to the importance of preventing lead poisoning. For example, the lead-based paint Renovation, Repair and Painting rule is particularly sensitive because it prevents unsafe exposures to lead in homes.

Last fall, the Environmental Protection Agency published summaries of enforcement actions against violators of the RRP rule. Most of the companies involved were small and the fines were only a few thousand dollars.

However, the EPA filed an administrative complaint against Collegiate Entrepreneurs Inc., a business running collegiate painting services in the Northeast, alleging 101 violations of the RRP rule and seeking penalties of up to $37,500 per violation. The initial civil penalty calculated under EPA’s penalty policy and provided to Collegiate Entrepreneurs for settlement purposes was an astounding $863,100.

Given all of this, is it possible that we’ve missed something and that more should be done to prevent lead poisoning, especially in children? It turns out the answer may be “Yes.”

In a recent Mother Jones magazine article, Kevin Drum reviewed several recent econometric studies demonstrating connections between the adverse health effects of lead exposures, particularly to boys, and violent crime rates. In short, lead poisoning increases crime rates.

Drum also discussed several recent neurologic studies showing that lead has perverse health effects at blood concentrations once thought safe. He then makes the case that further reductions of lead, particularly in urban soils still contaminated from past use of leaded gasoline, will yield economic benefits worth 10 times the cost of additional cleanup – primarily in the form of cognitive improvements leading to higher lifetime productivity and additional reductions in crime rates.

More lead remediation starts to look like a no-brainer, right? In practice, however, the additional work should be considered within the context of our existing legal frameworks and, if existing legal frameworks are found wanting, new ones should be developed and adopted if additional lead remediation is determined to be a societal priority.

Currently, the residential cleanup standard for lead is no more than 400 parts per million of residual lead in soil. This is intended to roughly correlate with a blood lead level of 5 to 10 µg/dL, which has been considered safe but may now be in question.

Suppose that by reducing the soil standard to 100 ppm, significant health and economic benefits can be achieved. Who will pay for the additional cleanup needed and how can the benefits of additional cleanup be shared equitably across all social and economic strata of our society?

Under existing laws and regulations, our stated preference is “polluter pays.” For properties with distinct sources of lead that may be contemplating a conversion to residential use – such as a former industrial site – a new cleanup standard for lead may not be too disruptive. Assuming that adequate lead time exists, the cost of complying with new standards could be factored into the development process and the specific economics of the planned development.

For sites known to be contaminated with lead and previously remediated to existing standards, a difficult question exists: Should they be reopened for further cleanup so that more stringent standards are met? Sites cleaned to less stringent industrial standards (because children aren’t at risk), probably wouldn’t require further work. However, for sites cleaned to residential standards, reopening closed sites for more cleanup would be a distinct possibility.

Finally, in practice, “current owner pays” is a frequent regulatory outcome, especially for historic and diffuse sources of pollutants, such as lead dispersed to soils from vehicles burning leaded gasoline.

More stringent standards for single-family residents if cleanup costs are absorbed privately will separate families who can afford to pay for cleanup from those who cannot. For tenants in multifamily housing, landlords may be better able to finance remediation costs privately, but those costs will ultimately be passed on to tenants, likely harming those who can least afford to pay.

In commercial and other types of private properties open to the public and requiring cleanup, private costs would again filter out and be spread among property owners, tenants and customers – likely according to lease provisions and other contractual arrangements never intended to deal with such costs.

For the reasons noted, existing mechanisms for cost allocation and cleanup funding are not up to the task of achieving just and equitable outcomes if lead cleanup standards are tightened. Thus, new cost allocation and funding mechanisms should be developed along with any consideration of more stringent cleanup standards for lead.

Landlords, whether residential or commercial, almost always include in their leases three requirements dealing with legal compliance. First, the lease limits the premises to specific legal use(s) or expressly allows any legal use of the premises. Second, the lease requires the tenant to comply with all legal requirements applicable to the premises and its operations. Third, the lease gives the landlord the right to inspect the premises to verify that these first two requirements are being satisfied.

Today, these provisions are more important than ever for landlords, because of the prevalence of illegal drug operations and particularly marijuana operations resulting from at least partial legalization in both Oregon and Washington. The government has the right to forfeit not only the tenant’s interest in the premises but also the landlord’s interest if the landlord cannot prove it is innocent of a convicted tenant’s criminal use of the premises.

In order to establish the innocent landlord defense, the landlord must prove that: 1, there was no reason to know of the tenant’s intent to engage in illegal use of the premises; and 2, it did not acquiesce in any such criminal use during the lease term.

The lease provisions mentioned above are necessary, but insufficient alone, to establish that a landlord had no reason to know of the tenant’s criminal intentions and did not acquiesce. This is why every landlord should screen all prospective tenants by obtaining a criminal background check as well as a credit check.

These screening reports are relatively inexpensive and easy to obtain. Disclosing, and obtaining consent for, the investigation of the tenant’s credit and criminal history in the lease application will also help avoid wasting time dealing with criminals, because they will not bother applying in most cases.

If a prospective tenant has no adverse criminal or credit history but resists the landlord right to inspect the premises or insists on unusual limitations on that right, then the landlord should be concerned about whether the tenant intends an illegal use. Inspection without prior notice is the best means by which the landlord can establish its innocence and lack of acquiescence in illegal use. Sticking one’s head in the sand and ignoring evidence of illegal use will not work because the courts will deem one to know what they should have known through a reasonably diligent investigation.

Granted, some tenants, such as financial institutions, have special security needs and must place restrictions on landlord inspection rights. But landlords must beware of tenants who demand inspection limitations without any reasonable need to do so, and particularly with respect to tenants who are more likely to engage in crime – such as residential tenants or sole proprietors of small businesses.

The problem is that the landlord’s interest can be forfeited if the landlord merely acquiesces in the illegal use of the premises. If the landlord has reason to know of the illegal conduct and fails to take reasonable steps to stop the illegal use, then the landlord cannot defend itself as an innocent party. Termination of the lease and eviction of the tenant is necessary to maintain innocence if an inspection reveals evidence of illegal use.

Despite partial legalization of marijuana in Oregon and Washington, landlords who allow growing and selling of marijuana on their premises – even for medical use – face a real and serious risk of forfeiture. First, it is virtually impossible for the landlord to verify and assure that the actual marijuana operation will comply with the state law limitations. And second, a conflict exists between state and federal marijuana laws.

Federal attorneys are prosecuting landlord forfeiture cases for use of the premises for marijuana growing and selling because the prosecutors believe the landlords are guilty of acquiescence in the violation of federal drug laws regardless of whether the activity is legal under state law. Letters have been sent out by federal attorneys warning property owners known to have tenants with marijuana operations on their premises to terminate the leases and evict the tenants if they want to avoid forfeiture under federal drug laws.

So, what does one do if a tenant is already in possession of the leased premises, and the landlord suspects there may be criminal activity on the premises? The landlord cannot evict the tenant based merely upon suspicions.

The way to avoid losing the innocent landlord defense in such circumstances is to report those suspicions, and their basis, to law enforcement officials. They likely will welcome the cooperation and assistance of the landlord in determining whether criminal activity is occurring on the premises. If reasonable cause is determined, then the law enforcement authorities can (and often will) obtain a search warrant and do their own surprise inspection of the premises – commonly known as a drug raid. If the tenant is thus exposed as a scofflaw, then the landlord has the needed evidence to evict the tenant and recover the premises.

Environmental crimes also can cause trouble for landlords. Even if the property is not forfeited, the value can be destroyed by the cleanup liability that comes with the land and will be an obligation of the landlord even though the tenant contaminated the premises.

Avoiding and stopping any illegal use of property is a landlord duty never to be ignored. The bottom line is to never: 1, trust one’s property to a criminal without considering the forfeiture risk, or 2, permit illegal use of one’s property.

Friends of Yamhill County v. Yamhill County (the Stoller Vineyards case)

One type of permit held by many wineries across Oregon is a conditional use permit (CUP) for “commercial activities that are in conjunction with farm use.” In Friends of Yamhill County v. Yamhill County, LUBA upheld a CUP for a new tasting room and a slate of 44 wine marketing events at Stoller Vineyards. The Stoller property is nearly 400 acres and includes a winery and approximately 180 acres of vineyards. The permit issued to Stoller by Yamhill County contained 16 conditions designed to ensure that Stoller’s business remained primarily focused on growing grapes and making wine and did not impact the surrounding farming community.

The Oregon Department of Agriculture (ODA) joined the Friends of Yamhill County (FYC), in appealing Stoller’s permit to LUBA. ODA and FYC argued, among other things, that Stoller’s proposed wine marketing activities were not sufficiently connected to local agriculture. LUBA rejected ODA’s and FYC’s arguments and upheld the county’s decision based on an analysis of twenty-plus years of legislative history and case law.

LUBA’s Yamhill County decision removes the cloud of uncertainty that this litigation has placed over wineries with CUPs across the state. There are many such wineries, including nearly 70 wineries in Yamhill County alone.

Keith v. Washington County (the Garden Vineyards case)

LUBA’s Yamhill County decision contrasts sharply with another recent case out of neighboring Washington County. In Keith v. Washington County, LUBA struck down a farm stand permit for a vineyard to host events featuring wine. This is the second time that the vineyard, known as Garden Vineyards, has been before LUBA. After the first appeal, which involved the permitted use winery pathway, Washington County issued Garden Vineyards a farm stand permit. Neighbors appealed the permit to LUBA and the county responded that LUBA lacked jurisdiction over the case because the permit was not a “land use decision” under state EFU rules. LUBA disagreed and held that the county was required to complete a land use process to evaluate whether Garden Vineyards’ operation met the state law criteria for a farm stand.

As a result of the Washington County case, counties will need to closely examine the state EFU rules to determine the extent to which wine tasting rooms and other wine-related activities qualify as farm stands. These rules are not entirely clear, and counties have been utilizing a variety of approaches for some time.

Conclusion

LUBA’s Yamhill County and Washington County decisions set the stage for the Legislature’s consideration of wine-related land use issues in 2013. Key provisions of the 2011 permitted use winery statute, HB 3280, are scheduled to sunset at the end of next year, and various bills are being proposed to amend wine-related zoning rules. More changes are therefore on the way in this oddly complex area of law.

The case, Niday v. Mortgage Electronic Registration Systems Inc., et al, held that MERS, when acting as a nominee for a named lender, is not a beneficiary under Oregon law. The practical effect of the holding is that any trust deed naming MERS the beneficiary may not be foreclosed in the name of MERS by the more expedient nonjudicial method.

A little context is in order.

In 1959, to remain competitive for loan dollars, Oregon adopted the Oregon Trust Deed Act to establish trust deeds as a real estate security instrument. For lenders needing to foreclose, the act created a summary, nonjudicial procedure that bypassed the courts and allowed no redemption rights for borrowers. Foreclosure previously was a judicial process taking two years or more to complete; now it could be done in six months with the summary procedure.

Lenders were happy because the time to liquidate a non-performing loan was substantially reduced.  Borrowers benefited because there was no right to a deficiency if the debt exceeded the value of the property and borrowers could cure defaults during the foreclosure process by paying only the amount in arrears rather than the full loan balance.

Trust deeds quickly became the favored real estate security instrument.

In 1993, in part to respond to a growing practice wherein lenders were bundling loans secured by trust deeds and selling them in secondary markets, a group of mortgage industry participants formed MERS and the MERS system.

Anytime a loan is sold from one member of the MERS system to another, the sale is tracked using the MERS system. MERS, the named beneficiary as nominee for the original lender and its assigns, remains the beneficiary as the loan is sold and becomes an agent of the new note owner. With no change to the named beneficiary, there is nothing to publicly record, an administrative convenience accomplishing a central purpose of MERS.

As MERS grew in acceptance, so did its popularity. Nationwide, there are more than 3,000 lender members of MERS that account for approximately 60 percent of all real estate secured loans nationwide.

The onslaught of the Great Recession resulted in a tremendous spike in foreclosure activity. To defend foreclosure proceedings, borrowers challenged the authority of MERS, in its own name, to foreclose non-judicially.

Because the trust deed is a creature of statute, the statutory elements allowing a nonjudicial foreclosure must be followed strictly. One such element is the requirement that the name of the beneficiary and any assignee be in the public record. Niday argued that the lender, not MERS, was the beneficiary. MERS countered that it was the named beneficiary in the trust deed and had the contractual right to foreclose as nominee of the lender and its assigns.

The court sided with Niday, holding that MERS is not a “beneficiary” as defined by the act. The court wrote that the beneficiary is “the person to whom the underlying, secured obligation is owed.” It reasoned that because the lender is owed the money, that party is the beneficiary. Only the person to whom the obligation is owed and whose interest is of record may legally prosecute a nonjudicial foreclosure.

What does all of this mean? Maybe nothing if the Supreme Court finds that the Court of Appeals defined “beneficiary” too narrowly.

Short of that, many issues arise. What is the effect on completed nonjudicial foreclosures of MERS trust deeds? Such sales may be void, in which case the ownership and right to possession of thousands of foreclosed properties fall into legal limbo. Perhaps the sales are only voidable, requiring a lawsuit by the borrower within a limited time to challenge the foreclosure sale.

Titles may now be in doubt for people who bought properties either at a foreclosure sale or further along the line. Also, no market may exist for these properties if title insurers choose not to insure titles until there is some clarity.

Going forward, will MERS lenders do business in Oregon? And if so, at what cost? Loans may be more expensive to administer because they either require that all assignments be documented and recorded or foreclosure via the more expensive judicial method. As such, loans in Oregon could demand higher interest rates.

Courts will see a sharp increase in the number of judicial foreclosure filings; it’s happening in Multnomah County already. An already overcrowded judicial system will gain additional burdens.

The Legislature could step in to fix the issue by clarifying the definition of “beneficiary” to include a nominee of the lender, such as MERS. But is there political will to legislate a solution that, on the surface, seems to benefit lenders?

A practice that for many years roamed freely under the radar has suddenly exploded to the surface, leaving the mortgage industry in limbo. Quick answers to the numerous issues now pending are imperative to restore certainty to real estate markets.

One of the most complex and fragmented issues affecting both water quality and water quantity is land use planning. The IWRS contains several recommendations related to land use regulation and these recommendations have evolved considerably over the three drafts of the IWRS, often moving from the specific to the general. This article explores these land use recommendations.

Use of the Statewide Planning Goals to Protect Water Resources  

Oregon’s Statewide Planning Goals are one of the foundations of Oregon’s land use system. The Planning Goals set the state’s land use principles and provide instructions to local governments on how to fulfill the Goals. The December 2011 draft of the IWRS contained two specific recommendations related to the Planning Goals. WRD changed both of these recommendations in its June 2012 draft.

First, the December 2011 draft IWRS recommended tightening restrictions on the conversion of forest land under Goal 4. The June 2012 IWRS draft removes this recommendation. This is interesting because there have been multiple recent efforts to allow greater development in forest zones. For example, a recent legislative earmark and Executive Order have allowed three southern Oregon counties to move forward with an effort to redefine forest lands in these counties.

Second, the December draft recommended additional local land use planning under Goal 5 to protect drinking water, wetlands and riparian corridors. Although the June draft notes that many local governments have not completed planning related to critical groundwater areas and wellhead protection areas, it stops short of recommending additional Goal 5 planning efforts. Rather, the June draft recommends only that local governments “protect water sources in the course of land use decisions.” This change could be significant because local governments are limited in their ability to consider land use impacts to natural resources that are not identified under Goal 5.

The June 2012 IWRS draft also amends another recommendation related to Goal 5 natural resources. The December draft recommended the development of a “state floodplain policy to set the framework for regulation and permitting work.” The June draft mentions that such a policy “could” set this framework, but does not specifically recommend development of a floodplain policy.

State Agency Land Use Coordination

The June IWRS draft contains a new recommendation that state agencies update their State Agency Coordination (“SAC”) policies. SACs generally require state agencies to ensure that their actions are consistent with state and local land use regulations. For example, applicants for state permits are generally required to produce a “Land Use Compatibility Statement” from their local jurisdiction stating that the applicant is in compliance with local land use rules. The SACs outline which agency decisions are relevant to land use regulations and when an agency will seek outside input regarding land use compliance.

It is not clear from the June IWRS why WRD believes the SACs are outdated and what updates WRD believes would be beneficial. The June IWRS draft states only that state agency SACs should keep pace with changes in local comprehensive plans and multiple state agency requirements. Changes in a local comprehensive plan, however, should not affect a state agency’s duty to coordinate with that local government regarding land use compatibility.

Low Impact Development and Green Infrastructure  

Both the December and June drafts of the IWRS recommend amending local land use codes to encourage green infrastructure. Green infrastructure and building standards can help conserve water and reduce water pollution from stormwater runoff.

The June IWRS notes that local governments need “strong administrative support and direction” as well as “technical resources and assistance” to develop and implement mechanisms to encourage low impact development. The IWRS nevertheless provides no recommendations on how to support local governments in encouraging green development.

Conclusion  

The IWRS identifies a number of important connections between water and land use policies, yet provides only vague suggestions on how to improve these policies. In fact, the June draft reflects a move away from the more specific recommendations in the December version. It is unclear how either the Legislature or the Executive Branch could utilize the IWRS to implement concrete changes to Oregon’s land use system.

Email communications are often as casual as oral conversation, and often do not reflect the level of thought and care that goes into the preparation of a legally binding real estate agreement. But they should.

Most business executives know that the law generally requires a written and signed agreement for a real estate transaction to be legally binding. What many of these people do not appreciate is that an informal email exchange can satisfy these legal requirements and collectively constitute a legally binding real estate contract. The printed name of the seller at the end of an email message will easily be held a sufficient electronic signature to bind the sender to the agreed-upon transaction.

Both the federal Electronic Signatures in Global and National Commerce Act, which applies to all interstate and foreign transactions, and the Uniform Electronic Transactions Act, a version of which has been adopted in Oregon, provide that a contract and signature will not be denied legal effect solely because they are in electronic form.

UETA applies “only to transactions between parties, each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties’ conduct.”

While no UETA appellate cases have been reported in Oregon yet, some around the country indicate the intent to contract electronically is easily inferred when a string of email messages contain the terms of a real estate contract.

For example, in New York last year a string of email messages was held to create a binding lease commission agreement for brokerage services. That case contrasts with a 2011 case in Louisiana, where the transaction was conducted by the traditional paper method, and the court rejected the buyer’s claim that their email message was a sufficient notice of contract termination.

One real-life Oregon example of this problem involved an enterprising individual who located a foreclosed home and who communicated an informal and unsolicited purchase offer to the bank via email. The bank’s attorney replied with a message accepting the offer, after which efforts to document and close the purchase failed because of onerous bank demands.

The bank succumbed to the temptation to believe it could back out of the original transaction when it discovered a second buyer ready, willing and able to pay over $100,000 more for the house.

Instead, the original buyer filed a lawsuit and placed a lien on the house, preventing the bank from selling to the second buyer. The first individual eventually prevailed; the bank had to close on the original price and terms.

Oregon courts are very likely to enforce the original buyer’s right to purchase if the key business terms like the property description, price, financing and closing date were agreed upon. Lack of agreement on all the ancillary sort of terms is not required to create a binding contract. The bank’s mistake could have been even more costly had the second buyer sued for damages due to loss of the bargain. Such circumstances are all too common.

So, what is the moral of this story? Protect yourself against unintended email contracts by using disclaimers – the same as those commonly used on nonbinding letters of intent to purchase or lease real property.

If you do not intend to be bound, then you had better say so, because the judicial assumption is going to be that the real estate agreement is binding in the absence of an explicit disclaimer in email messages. Consider every email message the equivalent of a wet-ink signature on a paper letter that potentially will be a legally binding contract unless that intent is expressly disclaimed.

So, how should an appropriate disclaimer read? A beefy disclaimer modeled on a letter of intent would read as:

“While this message consists of an expression of intent, it does not legally bind either party. However, this message will provide the basis for the preparation of a legally enforceable agreement between the parties. The parties acknowledge that this letter does not address all issues contemplated by the transaction described herein and such issues will be the subject of further negotiations. In the event the parties are unable to agree upon and execute, for any reason whatsoever, a mutually acceptable formal agreement, the parties understand that each party reserves the right to cancel all negotiations and consider other offers thereafter. In the event an agreement is executed and delivered by both parties, the terms of that document shall supersede all prior discussions and negotiations, and such document shall constitute the entire agreement of the parties as concerns the subject thereof.”

In many situations, such a long form of disclaimer will be undesirable. In those instances, conditioning a message with just a few words can provide a lot of protection. For example, it could say: “If we can agree upon other material terms, then the following terms would be acceptable as the basis for an agreement on this real property.”

Or you might want to say: “The following terms are subject to review and approval by our attorney.”

You could also simply say: “This message is nonbinding until the signing of a more formal and definitive contract between the parties.”

The key point is to remember that the email messages may well be a binding real estate contract absent some such condition or disclaimer.

The Governor’s order requires state agencies to work collaboratively with the counties to forecast future regional farming and forestry activities and identify lands necessary to support these activities. The order also directs the state agencies and the counties to develop mechanisms to ensure the economic and environmental sustainability of any lands rezoned to non-farm and forest uses.

The order contemplates that the counties will spend at least a year on mapping and technical work before bringing a rulemaking petition to the state. This fact-finding will be critically important to determine whether new land use rules are actually necessary to support economic development in southern Oregon.

For more information about the effort to redefine farm and forest lands in southern Oregon, see my earlier article.

Portland, OR: 4.00

New York City: 4.60

Phoenix, AR: 6.50

Tokyo, Japan: 3.26

Berlin, Germany: 3.06

As you can see, Portland gets more sunshine than Tokyo and Berlin, and Germany and Japan are the two leading countries in regards to solar generating capacity and leasing of roof tops.

Regardless of where you might be in the spectrum of solar worship, it’s good to be educated about the issues relating to roof top leasing so you know what to watch out for if a solar developer hands you a form lease to sign.

Here are a few tips:

• You will want to have the company check the structural integrity of your roof for photovoltaics (PVs). You shouldn’t have to foot the bill for this, and try to include an agreement that they’ll provide you with a report from the testing. This way, even if they don’t end up leasing space, you’ll have a recent report about your roof.
• You will need to keep in mind that a roof top lease is just like any other lease for space in your building. Look for provisions in your current lease and see if the same landlord protections are included, e.g. indemnities, maintenance responsibilities, and defaults regarding late payment.
• You need to know what the solar developer’s ownership interest is in the PVs. In most cases, the developer will either lease them or finance to purchase them. If financed, the developer may have to provide collateral security for its lender. This will affect your rights as a landlord and you want to make sure you are not left holding the bag when the lender comes to rip the panels off the roof and your roof is badly damaged due to the lender exercising its rights.

Really, though, you should just call us when a solar developer comes knocking with a form lease to sign.