David Hill Development, LLC v. City of Forest Grove et al, No. 3:2008cv00266 - Document 107 (D. Or. 2011)
Court Description: OPINION and ORDER - Defendants' Motion for Partial Summary Judgment 92 is DENIED. IT IS SO ORDERED. Dated this 1st day of June, 2011, by U.S. Magistrate Judge John V. Acosta. (peg)
Download PDF
<![CDATA[
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION DAVID HILL DEVELOPMENT, LLC, an Oregon limited liability company, Civ. No. 08-266-AC OPINION AND ORDER Plaintiff, v. CITY OF FOREST GROVE, an Oregon mnnicipal corporation, STEVE A. WOOD, individually and in his capacity as Project Engineer for the City of Forest Grove, ROBERT A. FOSTER, individually and in his official capacity as Engineering Director and Public Works Director for the City of Forest Grove, Defendants. ACOSTA, Magistrate Judge: OPINION AND ORDER 1 {KPR} Introduction This motion for partial summaty jUdgment on Plaintiff s federal inverse condemnation claim comes before the court in response to opinions recently issued by the Oregon Supreme COUli and Ninth Circuit Court of Appeals. Defendants argue that these opinions bear directly on Plaintiffs federal inverse condemnation claim and that, under this recently issued precedent, this claim fails as a matter of law. This cOUli ruled previously on summary judgment in this matter but will revisit certain of its rulings, in light of these recent opinions. In West Linn Corporate Park, L.L.C. v. City of West Linn, 349 Or. 58,240 P.3d 29 (2010), the Oregon Supreme Court addressed two celiified questions from the Ninth Circuit Court of Appeals regarding inverse condemnation claims arising from conditions on development. The Ninth Circuit has since issued an opinion in the same case, which substantially adopts the analysis of the Oregon Supreme Court. Based on the recent rulings, Defendants move the court to reconsider two of its prior rulings. l Legal Standard L Motion for Reconsideration Defendants have filed a second motion for summaty judgment premised on an alleged 1 At oral argument on this motion, Defendants also argued that Plaintiffs First Amendment retaliation claim should be dismissed in light of the Ninth Circuit's most recent opinion, issued just days earlier, and sought leave to brief the issue. The cOUli construes this request as a request for reconsideration of its prior ruling. The cOUli recognizes that the parties have not had an 0ppoliunity to brief or otherwise litigate this issue and, for that reason, does not conclusively rule with respect to Defendants' request. It advises Defendants, however, that in its view the opinion in question does not appear to announce an intervening change in controlling law, and rather represents only an application of existing law to a patiicular set offacts. That said, if Defendants wish to proceed on this theory the court will set a briefing schedule and rule on it in the normal course. OPINION AND ORDER 2 {KPR} intervening change in the governing law. The court construes this as motion to reconsider under Federal Rule of Civil Procedure ("Rule") 60(b). See American Ironworks & Erectors Inc. v. North Am. Com·tr. COIl)., 248 F.3d 892, 898-899 (9th Cir. 2001) ("a 'motion forreconsideration' is treated as a motion to alter or amend judgment under Federal Rule of Civil Procedure Rule 59(e) ifit is filed within ten days of entty ofjudgment. Otherwise, it is treated as a Rule 60(b) motion for relief from a judgment or order." (internal citations omitted)). Under Rule 60(b), "[r]econsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1Jv. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Such a motion may not be used to "raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." lviar/yn Nutl'acellficals, Inc. v. Mucos Pharll1a GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). Discussion This discussion concerns two recent decisions: one by the Oregon Supreme Court, West Linn COIporate Park, L.L.c. v. City of West Linn, 349 Or. 58, 240 P.3d 29 (2010) ("the Oregon decision"); and the other by the Ninth Circuit COUit of Appeals, West Linn COI1)orate Park 1.1. C. v. City of West Linn, No. 05-36061 (9th Cir. Apr. 18,2001) ("the appellate decision"). These decisions issued in response to the Ninth Circuit's request for guidance from the Oregon Supreme Court. In 2008, the Ninth Circuit certified tlu'ee questions of Oregon law to the Oregon Supreme COUIt in West Linn COIporate Park 1. L. C. v. City ofWest Linn, 534 F.3d 1091, 1005 (9th Cil'. 2008), two of which are relevant to the present discussion. In patticular, the Ninth Circuit sought guidance. as to the following: OPINION AND ORDER 3 {KPR} (1) Must a landowner alleging that a condition of development amounts to an exaction or physical taking exhaust available local remedies before bringing his claim of inverse condemnation in an Oregon state court? (2) Can a condition of development that requires a landowner to improve offsite public property in which the landowner has no property interest constitute an exaction? Id. at 1105. The Oregon decision answered these questions yes and no, respectively, the effect of which answers on this case will be described in more detail below. The appellate decision, which issued earlier this year, implicitly adopted the conclusions set fOlih in the Oregon decision. Defendants in the present matter, David Hill Development, LLC v. City of Forest Grove, Civ. No. 08-266-AC, seek reconsideration of celiain ofthis couli's prior decisions on summmy judgment to assess the impact of these recent decisions. The court will address the ripeness and exactions questions in turn. 1. Ripeness In addressing the ripeness of federal inverse condemnation claims, the Oregon decision referenced the holding ofthe United States Supreme Couli in Williamson COllnty Regional Planning Comm 'n v. Hamilton Bank, 473 U.S. 172 (1985), which describes a two-pronged ripeness analysis. Under the first prong, a court must determine whether a final decision has been reached on the administrative level, "to determine with certainty the permitted uses of the plaintiffs property." West Linn, 349 Or. at 67 (citing Williamson, at 193). Under the second prong, the court must determine whether the plaintiff had "obtained a decision from the state court denying it just compensation." Id. In initially evaluating the federal inverse condemnation claim at issue in West Linn, the Ninth Circuit found Oregon law "unsettled with respect to whether pursuit of administrative remedies is a prerequisite to an inverse condemnation action premised on a taking OPINION AND ORDER 4 {KPR} under Dolan and Nollan." !d. at 68 (characterizing the Ninth Circuit certification order, West Linn C0I1JOrate ParkL.L.C. v. City o/West Linn, 534 F.3d 1091 (2008)). The Oregon Supreme Court addressed this question as a matter of state law, holding: Assuming that Oregon law permits an inverse condemnation action premised on allegations that a condition of development requires a landowner to construct off-site improvements at a cost not roughly proportional to the impacts of development, Oregon law requires the landowner to pursue available local administrative remedies, but not to appeal to LUBA, as a prerequisite to bringing that claim in state court. Id at 76. In the present case, the court must determine whether this holding affects its prior ripeness ruling as an intervening change in controlling law. Defendants previously premised their ripeness argument, with regard to the federal inverse condemnation claim, on Plaintiffs alleged failure to fully litigate its state inverse condemnation claim prior to asselting its federal claim. This position was reiterated by Defendants' counsel at oral argument, withdrawing Defendants' exhaustion argument and stating that Defendants' position "on inverse condemnation is that the [c jourt has to analyze the state constitutional claim first ... before you get to the federal." (Morasch Declaration, Exhibit F at 2.) Although Defendants cited Williamson in their original reply brief, they did so in SUppOlt of the general proposition that a plaintiff must first pursue and be denied compensation on the state law claim, and not for a specific failure to pursue administrative remedies. In its disposition, the comt ruled against Defendants 011 the issue of ripeness: As Defendants offer no intermediate state administrative procedures that should have been pursued by Plaintiff, outside oflitigation in state court - which Plaintiffinitiated - the comt agrees that Plaintiffs federal claim becomes ripe should it fail under the requirements of the Oregon Constitution. (Findings and Recommendation, February 23, 2010, Docket No. 73 at 19.) The court declines to OPINION AND ORDER 5 {KPR} reconsider this ruling, for several reasons. nt to the court' s There has been no intervening substantive change in the law that is releva prior determination. local Under Oregon law, the requirement that a propel ty owner pursue of property is not administrative remedies when challenging a governmental deprivation a new one. P.2d 50 (1978), the Oregon In Fifth Ave. Corp. v. Washington County, 282 Or. 591,61 4-624 ,581 ies where a landowner had Supreme Court discussed the need to exhaust administrative remed unreasonable, and thus alleged that the county 's zoning plan was arbitrary, capricious, decision in Fifth Ave. Corp. unconstitutional as applied to its propelty. The court later described its a landowner "may not simply as holding that, in showing that he is precluded from all private use, rest on the apparent preclusive effect of the plan or other regulation when administrative procedures " Suess Builders Co. v. exist by which he might obtain at least temporary or partial relief .... COI1J., at 614-621)). As the Beaverton, 294 Or. 254, 261,6 56 P.2d 306 (1982) (citing Fifth Ave. Orego n Supreme COUlt noted in West Linn, it had subsequently "exten ded the requirement of Fifth Avenue to a plaint iffs claim for inverse condemnation in Suess Builders." West Linn, 349 Or. at 74. g judicia l relief by way of an In general, the need to exhaust administrative remedies prior to seekin inverse condemnation claim was established under Oregon law prior to the Oregon Supreme COUlt's recent ruling in West Linn. de Corp. v. Board of Furthermore, the Oregon Supreme COUlt decided, in Boise Casca not a necessary prerequisite Forestry, 325 Or. 185, 935 P .2d 411 (1997), that appeal to LUBA was issue presented - whether to filing an action for inverse condenmation. The COUlt reasoned that "the area traditionally adj udicat a taking had occurred - was a constitutional question that fell within an ed n in West Linn: "LUB A by courts." ld. at 196. The Oregon Supreme Court explained this decisio OPINION AND ORDE R 6 {KPR} and canno t make policy reviews the decisions of local govermnent, but it does not decide facts not serve the same purposes decisions for local governments .... Requiring appeal to LUBA would 349 Or. 75-76. Taking note as does requiring the pursuit ofloca l govern ment remedies." West Linn, ement that administrative of these decisions, the Oregon decision explicitly extended the requir arising from conditions on remedies be exhausted prior to bringing inverse condemnation claims that appeal to LUBA was not development requiring off-site improvements. The court also held required in order to exhau st the remed ies in question. In the court's view, this ruling does not constitute an intervening change in substantive law. a party seeking to asseli an It was already establi shed under both federal and state precedent that remedies. See Williamson, at inverse condemnation claim must first exhau st local admin istrativ e claim that the applic ation of 186 ("As the Court has made clear in several recent decisions, a ripe until the govern ment has government regulations effects a taking of a property interest is not to the property at issue. "); see reached a final decision regarding the application ofthe regulations )("The Orego n Supreme L.A. Del'. v. City ojShel1l'ood, 159 Or. App. 125, 129,97 7 P.2d 392 (1999 for amend ing zoning plans, Court held in those cases that, where administrative procedures exist those procedures for seeking relief must be pursue d rather than seekin g relief from a court of law." n Supreme Court made (citing Fijlh Avenue and Sues Builders)). To the extent that the Orego conde mnatio n claim is based explic it the administrative exhau stion requirement where an inverse Dolan, rather than some other on a condit ion of development, i.e., a claim premis ed on Nollan and species of taking, such extens ion did not chang e the law in a manne r material to the question before this court, now or at the time previously decided. Althou gh Defendants did challenge the ripeness of Plaint iffs federal OPINION AND ORDE R 7 inverse condemnation {KPR} claim in the original summary judgment motion, they did so only on the ground that Plaintiff s state inverse condemnation claim must be analyzed by the COUlt prior to analysis of the federal inverse condemnation claim. Further, Defendants explicitly conceded their exhaustion argument at oral argument on the original motion for summmy judgment. Defendants argued, at oral argument on the present motion, that their concession on exhaustion was related to the section 1983 claim. The record evidence is clear, however, that the statement was made with respect to the claims for inverse condemnation and Defendants have presented no evidence to the contrmy. For these reasons, the court will not reconsider its prior ruling on ripeness. II. Entitlement to Compensation In the Oregon decision, the Oregon Supreme Court also addressed the question of whether a plaintiffmay state a claim for inverse condemnation under the Oregon Constitution where the city conditions development on the "construct[ion] of off-site improvements at a cost that is not 'roughly proportional' to the impact" of the proposed development. West Linn, 349 Or. at 77. The court addressed this issue in the context of federal takings jurisprudence, explaining that the plaintiffhad couched the takings claim as one arising under the theoretical fi'amework set forth in Nollan v. California Coastal COIllIll 'n, 483 U.S. 825 (1978), and Dolal11'. City ofTigard, 512 U.S. 374 (1994). After a survey of NollanlDolan and subsequent Supreme Court rulings, the Oregon Supreme Court concluded: In the absence of a Supreme Court ruling to the contrary, we conclude that a govermnent's requirement that a property owner undertake a monetmy obligation that is not roughly proportional to the impacts of its development does not constitute an unconstitutional condition under NollanlDolan or a taking under the Fifth Amendment, nor does it require payment of just compensation. We also conclude that a requirement that a property owner construct off-site improvements is the functional equivalent of the imposition of a monetary obligation. OPINION AND ORDER 8 {KPR} West Linn, 349 Or. at 86-87. The court agrees with Plaintiff that, with respect to federal takings claims, the Oregon Supreme COutt's analysis of the relevant federal case law is dicta and is not binding on this COutt. That said, in the appellate decision the Ninth Circuit similarly distinguished West Linn from Nollan and Do/an, writing: Here, the conditions of development called for WLCP to construct several off-site public improvements with its personal property (money, piping, sand and gravel, etc.), but they did not require WLCP to dedicate any interest in its own real propelty. The Supreme COutt has not extended Nollan and Dolan beyond situations in which the govel'llment requires a dedication of private real property. We decline to do so here. West Linn COIporate Park, No. 05-36061 at 4-5 (citing Lingle v. Chevron USA, Inc., 844 U.S. 528, 547 (2005)). The Ninth Circuit also pointed out, in a footnote, that such distinction would not necessarily preclude a regulatoty takings claim under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). Id. at 5 n.3. This is not, however, an intervening change in substantive law that would merit reconsideration by this court. This court ruled, in conjunction with Defendants' first motion fot' summary judgment, that Defendants had failed to meet their burden to defeat Plaintiffs federal inverse condemnation claim. In particular, Defendants opposed Plaintiffs federal inverse condemnation claim on the ground that the conditions in question were generally applicable legislative determinations and not exactions specific to Plaintiff s development. The court held that Defendants had neither established that the claimed exactions were legislative in nature, nor that, if they were exactions, that they were roughly propotiional. As there has been no intervening change in controlling law and Defendants merely present an argument not previously raised, the court OPINION AND ORDER 9 {KPR} declines to reconsider its ruling on this point. Conclusion For the reasons stated, Defendants' Motion for Partial Summary Judgment (#92) is DENIED. IT IS SO ORDERED. DATED this 1st day ofJune, 2011. QHN V. ACOSTA Unite<l,States Magistrate Judge OPINION AND ORDER 10 {KPR}
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
