Charles Wiper, Inc., v. City of Eugene et al, No. 6:2008cv06226 - Document 57 (D. Or. 2011)
Court Description: OPINION AND ORDER: Denying Plaintiff's Motion for Partial Summary Judgment 34 ); Granting Defendant's Motion for Summary Judgment 29 . Signed on 04/20/2011 by Chief Judge Ann L. Aiken. (lg)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON CHARLES WIPER INC., an Oregon corporation, Case No. 08-6226-AA Plaintiff, OPINION AND ORDER v. CITY OF EUGENE, an Oregon municipality, Defendant. Rohn M. Roberts Aaron J. Noteboom Arnold, Gallagher, Percell, Roberts & Potter, P.C. 800 Willamette Street, Suite 800 Eugene, Oregon 97401-2296 Attorneys for plaititiff Jeffery J. Matthews Peter F. Simons Harrang Long Gary Rudnick P.C. 360 East Tenth Avenue, Suite 300 Eugene, Oregon 97401-3273 Attorneys for defendant AIKEN, Chief Judge: Plai,ntiff, Charles Wiper Inc., filed suit against the City of Eugene ("the City") alleging violations of its pro6edural and 1 f.' substantive due process U.S.C. § 1983. 1 protection rights under 42 Plaintiff's taken in response to a 1 Measure 37. a arise from the City's actions use cl former OR. REV. The City now moves plaintiff filed pursuant to § STAT. 197.352 (2005). summary judgment pursuant to Fed. R. Civ. P. 56 on all plaintiff's claims. The City argues that plaintiff has no ected prope interest in its Measure 37 claim under the Fourteenth Amendment and that plaintiff's "class of one" equal ect treated like other s claim ils because plaintiff was ed Measure 37 claimants. larly s Plaintiff opposes moves for partial summary judgment on its 1 process claim. The City's motion for summary judgment is granted and plaintiff's motion for partial summary j is denied. I. MEASURE 37 AND MEASURE 49 Measure 37 was an voters in t REV. STAT. § 2004 197. 3 itiative measure adopted by Oregon ral election and codified at former OR. (2005). Measure 37 created a mechanism by which quali rs could receive "just compensation" from a public ent ions a land use p'roperty. enacted and enforced specified types of § er the landowner purchased the ect 197.352(1); see also 210 Or. App. 542, 54.4 (2007). "Just compensation" was 2 amount by which the property's va OPINION AND ORDER diminished as a result of land use regulations enacted and enforced after the property was purchased. Id. § 197.352(2). Just compensation was due when and if applicable land use regulations were enforced 180 days after the landowner filed a Measure 37 claim. Id. § 197.352(4). Rather than pay just compensation, a public entity could elect to waive the relevant land use regulations within 180 days of the landowner's Measure 37 claim. Id. § 197.352(8). Subsequent to Measure 37's passage, the City amended its code to mirror Measure 37's procedures, including the requirement that the City act on Measure 37 claims within 180 days. Id. § 197.352 (7) (2005); EUGENE, OR., CODE 2.090 (2)"(2004). On November 6, 2007, Oregon voters passed Measure 49, which significantly amended Measure 37. Or. Laws 2007, ch. also Corey v. Dept. of Land Conserv. & Dev. 457, 460 424; see (Corey II), 344 Or. (2008). Effective as of December 6, 2007, Measure 49 essentially extinguished the just compensation and land waiver benefits available under Measure 37. Corey II, 344 Or. at 463. Norietheless, Measure 49 provided that a Measure 37 land use waiver issued before December 6, 2007 remained viable so long as the claimant had a common law vested right in the use allowed by the waiver as of December 6, 2007. 3 - OPINION AND ORDER Or. Laws 2007, ch. 424, § 5(3).1 Whether a right has vested depends on actual improvements made on the property, among other factors. Friends of Yamhill County, Inc. v. Bd. of Comm'rs of Yamhill County, 237 Or. App. 149, 161 (2010); Corey II, 344 Or. at 466. Prior to Measure 49's enactment, House Bill (HB) 3546 was 1 Specifically, Measure 49 allows relief for Measure 37 claimants who filed claims before June 28, 2007 for certain properties and those who possess a vested right in a Measure 37 waiver. Friends of Yamhill County, Inc. v. Bd. of Comm'rs of Yamhill County, 237 Or. App. 149, 152 (2010). Section 5 of Measure 49 provides: A claimant that filed a claim under [Measure 37J on or before [June 28, 2007J is entitled to just compensation as provided in: (1) Sections 6 or 7 of this 2007 Act, at the claimant's election, if the property described in the claim is located entirely outside any urban growth boundary and entirely outside the boundaries of any city; (2) Section 9 of this 2007 Act if the property described in the claim is located, in whole or in part, within an urban growth boundary; or (3) A waiver issued before the effective date of this 2007 Act [December 6, 2007J to the extent that the claimant's use of the property complies with the waiver and the claimant has a common law vested right on the effective date of this 2007 Act to complete and continue the use described in the waiver. In other words, Measure 49 permits a Measure 37 claimant who has been granted a land use waiver to complete and continue the particular use permitted by the waiver, to the extent that the claimant has "a common law vested right" as of December 6, 2007. Or. Laws 2007, ch. 424, § 5,(3); see also Corey II, 344 Or. at 464. For a full discussion of the factors of a common law vested right in relation to Measure 49, see Friends of Yamhill County, 237 Or. App. at 161, 166-167. 4 - OPINION AND ORDER introduced to the Oregon legislature in late April of 2007 and was signed into law by the governor on May 10, 2007. House Bill 3546 granted Oregon public entities an additional 360 days to review and act on certain Measure 37 claims before the property owner could file a civil action seeking just compensation. Pursuant to HB 3546, public entities had a total of 540 days to process Measure 37 claims. On July 23, 2007, the City amended its code to afford the City 540 days to review a Measure 37 claim before a suit for just compensation was actionable. EUGENE CODE 2.090(2007); Plf.'s Concise Stmt. of Mat. Facts at ~ 26. II. PLAINTIFF'S MEASURE 37 CLAIM On December 1, 2006, plaintiff submitted a Measure 37 claim to the City for property known as the Rest Haven Memorial Park. In its claim, plaintiff requested that the City either waive all restrictive land use regulations enacted since plaintiff acquired the property in 1929 or pay just compensation of $3,520,000 for the reduced value of the land resulting from the regulations. On April 30, 2007, notice for public hearing was issued for plaintiff's Measure 37 claim and two other Measure 37 claims submitted by First Baptist Church and Asghar R. Sadri. The notice scheduled plaintiff's hearing for May 18, 2007 and indicated that the City Manager recommended waiver of land use regulations. However, on May 8, 2007, the City cancelled the public hearings for all three Measure 37 claims. Plf.'s Concise Stmt. of Mat. 5 - OPINION AND ORDER Facts at ~ 20. On June 6, 2007, 187 days after plaintiff submitted its Measure 37 cIa City. Shortly rea plaintiff filed suit er, t low 540 City amended its code to days for review of Measure 37 claims, in accordance with HB 3546. The Lane County Circu alternative wr Court granted plaintiff's of mandamus to compel the City to act on Measure 37 claim or cause why it was not requi Plf.'s Concise Stmt. Mat. Facts at ~~ to so. 24, 25. The City elected to show cause. On November 30, 2007, the Lane County Circuit iff's motion for summary j Court granted mandamus action in the later, on not enter final judgment. December 6,. 2007, Measure 49 took effect. a On December 26, 2007, the Circuit Court is writ of mandamus, adopt a reso remptory ring the City to hold a public hearing and ion on plaintiff's claim under sions of Measure 37 as of May 30, 2007. In compl with the writ, the City complet a draft Report and Recommendation for consideration by the C pro tern and a public hearing on January 28, 2008. The City denied pIa iff's Measure 37 claim on deciding that land restr iff's conditional use 11, 2008, reement and other did not meet the statutory de use regulations under Measure 37. "To the extent t claim is y Manager s on those provisions of t 6 - OPINION AND ORDER tion of land Claimant's or other ions or provisions which did not constitute I use merit." regulations under Measure 37, the claim lac Def.'s Ex. 1 1, Additional Findings, Attchmt. A, No.1. Plaintiff petitioned and was writ of basis that the City Council erred in ew on the its Measure 37 claim on January 28, 2008. The City writ and filed the necessary documents while also submitt a motion to quash the writ. On June 19, 200a, the Circuit Court motion to quash the writ of City's plaintiff's ew, Measure 37 claim was mooted by enactment of Measure 49. On July 22, 2008, plaintiff fi s action to obtain damages of $43,520,000 and costs Meanwhile, the City I sements. t a rnative writ of mandamus granted by the Circuit Court. On June 2, 2010, the Oregon Court of Appeals found that p iff's Measure 37 claim was rendered moot by Measure 49 as of December 6, 2007. It is undisputed that, by t general judgment was entered in this case, Measure 49 had already gone into effect. Although the ef ct of Measure 49 on pending Measure 37 cIa was subject to some debate at the time the circuit court ed in this case, that debate has s en reso ... In light of Corey and subsequent case law, it is clear that, at least as of December 6, 2007, t re was no justiciable controversy r and the city regarding the processing of the Measure 37 claim. That is so because, regardless of r's claim was subsequently processed a r wr issued- i.e. whether the claim was granted or by ty- the city's decision would have had no lity under current law. Charles Wiper Inc. v. City of Eugene, 235 Or. App. 382, 386-387 7 - OPINION AND ORDER (2010) ====~==, (citations omitted). 344 Or. 457. III. STANDARD OF REVIEW Summary judgment is riate if materials in the record show that "there is no genuine e as to any material fact and the movant is entitled to j R. Civ. P. 56{a) & (c). as a matter of law." Fed. mat by the substantive law on is determined ity of a issue. Pac. Elec. Contractors Ass'n, 809 F.2d626, 630 (9th Cir. 1987). The authenticity of a by whether the e is det evidence is such that areas for the nonmoving U.S. 242, 248 Ie jury could return a verdict rty. Anderson v. Liberty Lobby, Inc., 477 (1986). The moving s rty of a genuine issue of establishing the absence . Celotex Corp. v. Catrett, mate 477 U.S. 317, 323 (1986). If moving party shows the absence of a genuine issue of material beyond the pI issue for trial. Special judgment motions: s i y; s of construction apply to evaluating s (1) all reasonable doubts as to the existence 1 fact should be resolved aga t (2) all inferences to be drawn from the underl 'the nonmovi ify facts which show a genuine at 324. of genuine issues of mater moving , the nonmoving party must go viewed in the light most favorable to ~~-===~, 8 - OPINION AND ORDER 809 F.2d at 630. IV. DISCUSSION A. DUE PROCESS Plaintiff asserts that its due process rights were violated when the City cancelled plaintiff's Measure 37 public hearing originally scheduled for May 18, 2007. Plaintiff argues that the City did not afford plaintiff adequate procedural due process when it failed to hold a public hearing within 180 days of plaintiff's Measure 37 application, as required by Measure 37 and the Eugene Code, and did not process plaintiff's application wi thin a reasonable period of time. EUGENE, OR., CODE 2.090(2) (2004). Plf.' s Mem. in Opp'n., p. 9, n. 9. Further, plaintiff contends that the City's post-writ hearing was insufficient to meet constitution muster because it was not at "a meaningful time and in a meaningful manner," given that any hearing was moot and meaningless after Measure 49. 2 Plf.'s Mem. in Opp'n., p. 14; see Sinaloa Lake Owners Assoc. v. City of Simi Valley, 882 F.2d 1398, 1405 (9th Cir. 1989). Finally, plaintiff alleges that the City violated its substantive due process rights because the City'~ actions were arbitrary and egregious. The Due Process Clause requires notice and opportunity to be heard in a meaningful and timely manner. Buckingham v. Sec. of Plaintiff objects to any evidence of acts taken by the City to process and/or act on plaintiff's Measure 37 claim after the enactment of Measure 49 on December 6, 2007. Regardless of plaintiff's objection, plaintiff cannot prevail, whether or not the court considers evidence ~fter enactment of Measure 49. 2 9 - OPINION AND ORDER the u.s. Dept. of Agric., 603 F.3d 1073, 1082 (9th Cir. 2010). The threshold requirement to prevail on a substantive or procedural due process claim is a property or liberty interest protected by the u.s. Constitution. Wedges/Ledges of Calif. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). "Only after finding the deprivation of a protected interest do we look to see if the State's procedures comport with due process." American Mfrs. Mutual Ins. Co. v. Sullivan, 526 u.S. 40, 59 (1999). The Supreme Court has explained the source and nature of constitutionally cognizable property interests: Property interests ... are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Bd. of Regents v. Roth, 408 u.S. 564, 577 (1972); see also Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998); Sinaloa Lake Owners, 882 F.2d at 1405. In order to possess a property interest in a benefit, a party must have more than "an abstract need or desire for it" or "a unilateral expectation of it." Brewster, 149 F.3d at 982. Rather, the party must possess "a legitimate claim of entitlement to it." The City argues that plaintiff's due process claims fail because plaintiff had no protectible property interest in its 10 - OPINION AND ORDER Measure 37 a , a claim that was never accepted as val that its compliance with Measure 37's City. Plaintiff re requirements r by red t City Council without discret to reject plaintiff's claim and created a legitimate cIa 0 its claim, the continued processing of its cIa entitlement and the right to "vest" its Measure 37 claim under Meas Plf.'s Mem. 'n (doc. 39), p. 7. Because iff asserts an interest under state law, a law in determining whether plaintiff look to protectible erest. Brewster, 149 F. y Ultimately, I fi interest, 49. I s a at 982. plaintiff had no protected rty even if one could have been created, now not actionable. be moot In Oregon Court of Appeals 37 claim was cons relevant red a protected property interest when the rnment entity determined the land effect that a Measure ations ir market value of the petitioners' property and claim for either compensation or an exception to the r to compensation under Measure 37. Corey I, 210 Or. App. at 551 & n.6. In other words, a claimant d not have a property rest merely in the application for Measure 37 benefits, but in of the claim for a f s. at 551; Emmel v. 213 Or. App. 681, 682 (2007). a 11 iff's mere application OPINION AND ORDER Measure 37 benefits is e insufficient to create a protect 210 Or. App. at 551; Emmel, 213 Or. rty interest. Corey I, at 682. Further, after plaintiff's writ of mandamus required the City to decide plaintiff's Measure 37 c that plaintiff did not im, the City determined Measure 37 benefits. As a i result, plaintiff was not iss a wa and plaintiff took no use. Thus, plaintiff's Measure 37 steps to initiate I claim was not accepted never rose to the level of a protectible property st. Plaintiff none ess relies on Foss v. Nat'l Marine Fisheries Serv., 161 F. 584 Measure 37 was mandat (9th Cir. 1998) in arguing that created a legitimate claim of entitlement and of fits claimants who met the eligibility requirements. 3 Plf.'s Mem. in Opp'n, p. 6. Plaintiff argues that the City , or should have known, that plaintiff had a valid claim at t 2007 and the without plaintiff of its property interest cess. Plf.'s Mem. in Opp'n. p. 6 r n. 6. However, the federal statute 3 Measure 37 claimant was property cont acquired the reducing t subject 12 it cancelled the hearing on May 8, ing a fishing license in Foss was not that claimants establish that: 1) owner of the property had owned acquiring it; 2) at the t was not subject to land use r market value, but it later land use regulations; and 3) those effect of reducing the r market rty. OR. REV. STAT. § 197.352 (2005). OPINION AND ORDER later revoked by a new statute, license application. original moot , 161 F.3d at 584. the City "knew or should have known" of pIa does not support an art or when such claim became moot a r assertion that iff's valid claim ectible property interest ssa t of new legislation. Plaintiff also argues v. s court should look to Holman City of Warrenton, 242 F. 2d 791, 796-797 (D. Or. 2002), for guidance in ni ivation of due process rights. There, Holman received a conditional use 1 permit to establish a 796. Holman then appli Y in Warrenton. at a building permit to construct the facility, only to it , despite the fact that no material differences exist between the plans Holman ori lly submitted to the Planni ss permit and the plans s to the Building Code Department for the building pe t. conditional use entitlement suffi protectible for the conditional use court found that Holman's constituted a legitimate claim of ent to establish a constitutionally erest to "develop his property in a rty manner consistent conditional use permit and in the issuance of a bui rmit consistent with that conditional use permit." What at 805. st s property-owner 13 OPINION AND ORDER from plaintiff's case is that had been granted a condit use permit before city officials denied him a building permit. Id. at 796-797. Without some form of approval, plaintiff's application for benefits under Measure 37 is not analogous to Holman's conditional use permit. Thus, plaintiff does not share the same legitimate claim of entitlement in its Measure 37 claim. Plaintiff's reliance on Grabhorn, Inc. v. Metropolitan Service District, 624F. Supp. 2d 1280, 1284 (D. Or. 2009) is similarly misplaced. In Grabhorn, the owner and operator of a solid waste facility had an agreement and specially designated status to receive dry waste from the metropolitan district. Id. The existing agreement and status were then terminated when the district refused a variance necessary to comply with new mandates. Id. at 1286. The district court relied on Foss in finding that the Metropolitan Code controlling Grabhorn's variance was "sufficiently mandatory" to create a constitutionally protected property interest. Grabhorn, 624 F. Supp. 2d at 1288. In contrast, plaintiff has no agreement, status, or approval of its Measure 37 claim that was later revoked or terminated. And, unlike the regulation at issue in Grabhorn, Measure 37 has been interpreted by Oregon courts and their interpretation controls. See Corey I, 210 Or. App. 542, Emmel, 213 Or. App. 681. Thus, plaintiff had no protectible property interest in its Measure 37 claim. Likewise, plaintiff cannot establish that it has a 14 - OPINION AND ORDER protectible property interest in the continued processing of its Measure 37 claim and in its right to "vest" its Measure 37 claim. After Measure 49's passage, the Oregon Supreme Court in Corey II held that pending Measure 37 claims were moot unless otherwise protected under Measure 49. Corey II, 344 Or. at 457. "An examination of the text and context of Measure 49 conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners." Corey II, 344 Or. at 465. Further, "Measure 49 pertains to all Measure 37 claims, successful or not, and regardless of where they are in the Measure 37 process." Corey II, 344 Or. at 465 (emphasis in original) . Even if plaintiff had, acquired a protectible property interest through approval of its Measure 37 claim, the passage of Measure 49 rendered plaintiff's Measure 37 claim moot absent a vested interest in any use allowed by an approved claim. Or. Laws 2007, Ch. 424, § 5(3); see Corey II, 344 Or. at 466. Although plaintiff filed an application for benefits, plaintiff had no approved land use waiver nor had it initiated any approved use of the land. As such, without a protectible vested rights interest under Measure 49, plaintiff's Measure 37 claim became moot as of the effective date of Measure 49, as did its Writ of Mandamus and Writ of Review. Charles Wiper, App. 382 Inc. v. City of Eugene, 235 Or. (2010); Def.'s Concise Stmt. of Mat. Facts at 15 - OPINION AND ORDER ~ 15; see also ~~~~~, interest rty a protect iDle 344 Or. 457. I cannot f r a mooted state statute and full disregard Oregon law. Thus, without an al vested right in its Measure 37 claim, e property interest either iff has no protect continued processing s Measure 37 claim or the right to create a vested interest. Finally, at oral argument, Code, whi a at the time of pla iff's claim provided 180 days to process Measure 37 claims, creat interest. iff argued that t a protectible iff is mi rty Corey I articulates when a Measure 37 claim becomes a ible property interest, and it occurs only after approval relevant government entity. 210 at 551-552. Thus, a interest in its Measure 37 a Or. iff had no protect , the continued property ssing of its Measure 37 claim, or the statutory right, under Measure 49, to "vest" its Measure 37 cla Even if plaintiff could assert a protectible erest, I note 37 cla ss rights. fails to show a violation of its after the City within 180 days, mandamus process to compel ld a public hear to compel a state s. Or. Rev. 16 rty OPINION AND ORDER iff's Measure iled to process pla iff utilized Oregon's writ of City to adhere to its procedures A writ of mandamus is t appropriate to follow internal rules and 34.105-34.240. Lane County Circuit Court ordered a public plaintiff's Measure 37 ~laims. i 1 disposition on f Def.'s Ex. 1 6, p. 2. The City held a public hearing on January 28, 2008, and thereafter issued a resolution denying plaintiff's Measure 37 c im. Def.'s Exs. 1 1,1-6, p. 2. Though the City acted on its c aintiff argues that the City's hearing was not const 1 adequate because, to be "at a meaningful after Measure 49, the hearing was too time and in a meaningful manner." Plf.'s Mem." in Opp'n. p. 14 (quoting Sinaloa Lake Owners Assoc., 882 F.2d at 1405).4 However, plaintiff received process to be heard that was constitutionally adequate. If Measure 49, the C i y's to which plaintiff insist decision provided the process it was ent claim it did not rece 49 essentially nullifi specific circumstances, with respect to procedural due As to pIa find no vio caused voters had not passed led. Plaintiff cannot now e process simply because Measure its Measure 37 claim. Unde~ these aintiff received,the process it was due s Measure 37 aim. Thus, plaintiff's ss claim fails as a matter of law. iff's ion even if tant due process ~laim, I likewise aintiff possessed a property rest 1 plaintiff also asserted that Measure 49 of its property interest. In light 457, and Emmel, 213 Or. App. 681, plainti il on s or any theory of deprivation. did not enact Measure 49. 17 - OPIN AND ORDER in its Measure 37 cla substant . For an alleged deprivation of ss to be actionable, government conduct must due amount to an " power lacking any reasonable justifi se imate governmental objective." of a se 540 F.3d 1082,1088 (9th Cir. 2008) omitted). "Only "a on (internal quotations most egregious official conduct" is ra constitutional sense." Id. When City became aware of pending state legislation would substanti Measure 37 Kle aim ~~ ring was 3546 whi ng rings. Matthews Decl., Ex. 5, p. 7-8, 16; 4, 6. The City's actions in cancelling reaso~ably ext The City's ly change Measure 37, it cancelled all iff's a justified in light of the ng HB the time for processing Measure 37 c cision to postpone public hearings did not rise to ious offici~l conduct" in light of legislat " state capital, nor was it "arbitrary in the constitutional in sense .. " ====~, 540 F.3d at 1088. Thus, plaintiff's substant ss claim fails. In sum, plaintiff's substantive and cIa il as a matter of law·. P intiff argues that the C y t rs similarly situated and there was no rat f 18 1 due process rent treatment. "Disparate treatment by a OPINION AND ORDER f rently than 1 basis for the rnmental entity is permiss as e so bears a rational re to a legitimate state interest." David Hill Development v. City of Forest Grove, 688 F. .2d 1193, 1216 (citing Penman, 103 F.3d 868, 875 (9th Cir; 1996)). However, no rat 1 basis exists for state action that is "malicious, irrational or plainly arbitrary." ing Armendariz v. Penman, 75 F.3d 1311, 1326 (9th Cir. 1996) (en banc)). Plaintiff asserts that because the City claims submi tt Lane Plywood, Inc. (DMB Green), t Measure 37 (LPI) and DMB Green, LLC City's cancellation of plaintiff's qualifies as unconst argues that pIa ional disparate treatment. iff's equal protection fails because LPI and DMB Green are not similarly situated cl not only cancel 1 pIa City s, City , but all iff's Measure 37 cl pending Measure 37 claim hearings for a rational reason. I agree. LPI Measure 37 benefits on Oct i r 19, 2005, and on June 26, 2006, the City approved LPI's Measure 37 claim . Roberts' . , Ex. 14, pp. 4, was on March 14, 2007. Roberts' Decl., Ex. 14, p. 18. 6. DMB Green's Measure 37 claim These events occurred before HB 3546 took e ct on May 10,2007. Thus, LPI's and DMB Green's Measure 37 were submitted, process Legislature, similar to approved before HB 3546 was these entities are there aintiff. 19 - OPINION AND ORDER tted to the not substantially In contrast, First Baptist's, Sadri's, and plaintiff's Measure 37 claims were pending at the time HB 3546 was introduced, and all three pending Measure 37 claim hearings were cancelled on May 8, 2007 in anticipation of HB 3546's proposed extension. Thus, plaintiff cannot claim it was singled out for unequal treatment. Even if the court agreed with plaintiff that the City utilized HB 3546 to extend the hearing dates for Measure 37 claims until Oregon voters decided Measure 49, the City's decision is not malicious, irrational, or plainly arbitrary. The language of HB 3546 makes clear that the Legislature believed that Measure 37 created a state emergency: "This 2007 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2007 Act takes effect on its passage. u HB 3546, § 3. Thus, HB 3546 provided the statutory authority to give localities more time to process Measure 37 claims pending the outcome of Measure 49. For the City to take advantage of a statutorily afforded extension is not malicious, irrational or plainly arbitrary. Plaintiff counters that the deposition testimony of its own land use planner and attorney shows the City acted with animus or ill will in processing plaintiff's Measure 37 claim. Plf.'s Mem. in Opp'n, p. 22. However, plaintiff submits no evidence, such as statements or testimony of City officials, to support this 20 - OPINION AND ORDER asserted fact. Conjecture from plaintiff's hired consultants does not constitute evidence of past animosity or ill will, nor does it create a reasonable inference that the City Council and staff acted maliciously. Rather, the evidence shows that, after the Lane County Circuit Court mandated public hearings and action on plaintiff's Measure 37 claim, the City held such hearings and issued rational reasons for denying the claim. 5 Plaintiff presents no evidence of animus or ill will directed toward plaintiff. Although plaintiff may disagree with the findings in the City's denial of its Measure 37 claim, the City's actions do not implicate the equal protection clause. Plaintiff was treated like other similarly situated Measure 37 claimants when its hearing was cancelled, and the City ultimately provided rational reasons for its denial of Plaintiff's Measure 37 claim. v. CONCLUSION For the reasons explained above, the City's Motion for Summary Judgment (doc. 29) is GRANTED, and plaintiff's Motion for II II II 5 The City found that "not all of the complained of regulations are 'land use regulations' under Measure 37; some are exempt; and some do not meet other requirements of Measure 37." Def.'s Ex. 1-1, p. 7. Namely, the City determined that the conditional use agreement restricting the land was not a land use regulation as provided by Measure 37. 21 - OPINION AND ORDER Partial Summary Judgment (doc. 34) is DENIED. IT IS SO ORDERED. Dated this c(~ay of April, 2011. Ann Aiken United States District Judge 22 - OPINION AND ORDER
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