BEH Speaks on Marijuana at OCCMA

David and Chad were invited to speak at the summer 2015 OCCMA conference in Bend on issues related to the local regulation of marijuana use and sales in Oregon. Their presentation focused on topics of interest to cities and counties including the ability of local governments to ban marijuana facilities, marijuana taxation and reasonable time place and manner restrictions on marijuana facilities.

SB 254

By David Doughman

“A reminder to public agencies in Oregon: SB 254 became effective on July 1, 2014.  The Oregon Legislature passed this bill in 2013.  It significantly changes the process by which public agencies may utilize the construction manager/general contractor (aka “CM/GC” or “GC/CM”) delivery method.  It is codified at ORS 279C.337 and a link to that chapter is provided here.

And by “significantly changes,” we mean it makes it significantly more difficult to utilize the CM/GC process to build public improvements.  While the delivery method is meant for complex projects, and while there likely have been instances when its use was not justified for a given project,  SB 254 adds so many proverbial hoops to jump through that most agencies will likely avoid using it even when it makes sense to do so.

Exemptions sought before July 1 were not subject to SB 254.  It is not clear from the bill exactly what steps an agency would need to take in order to vest under the existing process.  To be safe, we recommend an agency have an exemption approved prior to July 1 if it is interested in using CM/GC for a coming project.”

Ninth Circuit Rejects Qualified Immunity Request In Use of Taser Case

The United States Court of Appeals for the Ninth Circuit, the Circuit to which Oregon belongs, rejected a request for qualified immunity by a police officer who used a taser to subdue a passive bystander.  In Gravelet-Blondin v. Shelton, the plaintiff was tased and arrested after he allegedly failed to comply immediately with an officer order to move away from the scene where his neighbor was being arrested.  The Ninth Circuit explained that it was “beyond debate” that using non-trivial force in response to passive bystander behavior was unconstitutionally excessive.  The Court further explained that it was well known as of 2008 that a taser in dart mode constitutes more than trivial force.  Because Gravelet-Blondin did not impose an immediate threat of death or serious injury to himself or others, his actions were those of a passive bystander, and the officer in question should have known that the use of the taser to subdue his passive resistance was unconstitutionally excessive.  Accordingly, the Court rejected the officer’s request for qualified immunity.  In addition, because the City’s policies related to the use of tasers did not clearly prohibit the use of tasers in this situation, the Court held the City was also potentially liable.  

The use of tasers continues to be a source of litigation against local governments and their employees, and local governments need to make sure to have proper policies in place and provide adequate training to their employees to avoid this type of litigation.  Please do not hesitate to contact the lawyers at BEH if we can provide you with any assistance in reviewing your jurisdiction’s taser policies or assist with providing training to your employees.

Dime bags will not be sold at Walgreens: Medical Marijuana Dispensaries and HB 3460

When the State legalized the use and limited distribution of marijuana for medical purposes, patients were immediately faced with the question of how to get their marijuana. Persons with a medical marijuana (MM) card are allowed to grow their own plants or appoint a designated grower, but according to the Oregon Department of Justice, anywhere from 150-200 dispensaries or “pharmacies” are in operation serving the needs of MM patients who are unwilling or unable to grow their own plants or find someone to do it for them. Up until now, the dispensaries/pharmacies have operated under exiguous state regulation, which has led to diversion to the black market and other misuses. HB 3460 requires the Oregon Health Authority (OHA) to license and regulate medical marijuana dispensaries, and creates a registry of businesses that sell medical marijuana. The registry will be available to law enforcement agencies. HB 3460 sets forth some initial regulations by prohibiting dispensaries within 1,000 feet of a school or another dispensary, requiring robust security measures, allowing only MM card carriers or their registered caregivers to enter the premises, and giving OHA the authority to draft additional rules to implement the bill.

Under the new legislation, cities retain the ability to regulate dispensaries beyond what is contained in the bill, thereby reflecting local needs. For example, cities may impose additional regulations pertaining to siting.  Cities are, however, encouraged to work closely with the lawyers here at BEH to draft such regulations, as legal challenges will likely arise.

This topic will continue to develop as the state and localities navigate through somewhat murky territory. We will keep you posted on any developments, and as always, feel free to contact our office with any questions you might have.

New Posting Requirement for Employers Including Local Governments

Oregon law provides substantial protections for employees who are victims of domestic violence, sexual assault, stalking or criminal harassment.  Specifically,  employees who are victims are entitled to protection from job discrimination based on their status as a victim; employers must provide reasonable workplace safety accommodations for employees who are victims; and some employees who are victims are entitled to reasonable leave from work to address safety–related matters.  HB 2903, which was passed by the legislature during the 2013 session, requires employers with six or more employees - including local governments - to post a summary of the statutes and administrative rules regarding the employment rights of victims of domestic violence, harassment, sexual assault or stalking.  The required posting materials will be made available electronically here when completed by the Bureau of Labor and Industries (BOLI).

It's BEH Client Seminar time again!

Beery Elsner & Hammond is pleased to offer a free seminar on September 13, 2013, from 8:30 a.m. to 12:30 p.m. at the Jenkins Estate in Beaverton, Oregon.  Topics will include discussions on the U.S. Supreme Court’s Koontz Decision (Exaction Issues), Land Use Fees and Land Use Decisions, HB 2254 and Goal 14/UGB Issues and Ex Parte, Conflict of Interest, Bias, Disclosures, Findings and Final Orders. We believe the seminar will prove beneficial to our clients’ managers, planners and planning staff, as well as elected and newly appointed officials.  Our goal is to provide our clients and others in the public sector with valuable information that will assist in carrying out public services.

Registration and a buffet breakfast prepared by Jenkins Estate will be provided at 8:00 a.m..  If you are interested in taking advantage of this free opportunity, please RSVP by Friday, August 23, 2013, to Cherrie Houston at (503) 226-7191 or  In the mean time, feel free to contact us with any questions.

We hope to see you on September 13!

Supreme Court Rules on Koontz v. St. Johns River Water Management District

Yesterday the federal Supreme Court issued a landmark decision regarding the authority of municipalities to require “monetary exactions” during the building permit process.  The Court also held that the federal Takings Clause analysis applies to court review of a building permit denial, if an “unconstitutional condition” existed during the permit process. See Koontz v. St. Johns River Water Management District, (“Koontz”).  The decision was decided by a majority of the Court, led by Justice Alito, in a 5/4 decision. The majority of the Court held that:

  • During the building permit process, “monetary exactions” required by a municipality of the developer may “amount to a per se taking similar to the taking of an easement or a lien,” id. at 18, and must pass the federal takings analysis under Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994) (“Nollan-Dolan test”).  The Court clarified that “monetary exactions” do not include taxes, though may include “land use permitting fees.”
  • A municipal requirement that a building permit applicant reserve or set aside a portion of its property as part of the project—e.g., as a conservation easement for wetland mitigation—must also pass the Nollan-Dolan test.  If it does not pass the federal Takings Clause analysis, then even a permit denial may be unconstitutional.  Importantly, the Court stated that “so long as a permitting authority offers the landowner at least one alternative that would satisfy Nollan and Dolan, the landowner has not been subjected to an unconstitutional condition.” But the Court found that this requirement had not been met in this case.

The facts of the case are informative. A developer applied to his local Florida water management district to build on 3.7 acres of his 14.9 acre property.  The property had wetlands on it, and the buildable portion had the most wetlands.  The developer proposed to construct a building, parking lot, and stormwater catchment pond on the 3.7 acres and, to meet wetland mitigation requirements, deed the rest of the property to the District as a conservation easement.

The District rejected the developer’s proposal and “suggested” that the permit could be approved if the developer: (1) reduced the building footprint to 1 acre by eliminating the aboveground stormwater catchment pond and installing a stormwater management system underground, then deeded the rest of the property as a conservation easement; or (2) developed the 3.7 acres as proposed, and also paid for improvements to District wetlands at another location, i.e., funded offsite wetland mitigation.

The developer declined the District’s offers, and the District denied his building permit.  In the above holding, the Court concluded that both of the District’s proposals—an increased dedication for a conservation easement and a “monetary exaction” for offsite wetland mitigation—ran afoul of the federal Takings Clause.

BEH turns out for inaugural Hillsboro Hops game

Hops-collage1-225x300The City of Hillsboro hit a home run with the opening game of the new Hillsboro Hops baseball team!  With standing room only for the first game, the team along with the new stadium promise to be a big success for the City.  The Hops, a Single-A team affiliated with the Arizona Diamondbacks, impressed spectators by routing the Eugene Emeralds, 12-0.  An exuberant crowd and civic pride were evident for the game and the players—even the weather cooperated with a vibrant double rainbow for the 5th inning.  Several BEH attorneys are proud to have assisted the City with bringing the team and the stadium to Hillsboro and were thrilled to be a part of the opening night fun at the new ballpark.