Blumenkron v. Hallova

Citation568 F.Supp.3d 1093
Decision Date25 October 2021
Docket Number3:20-cv-00422-HZ
Parties Katherine BLUMENKRON, an individual; David Blumenkron, an individual; Springville Investors, LLC, a limited liability company, Plaintiffs, v. Anyeley HALLOVA, Robin McArthur, Catherine Morrow Katie Pearmine, Gerardo Sandoval, and Stuart Warren, all in their official capacities as a member of the Land Conservation and Development Commission; Sam Chase, Shirley Craddick, Craig Dirksen, Juan Carlos Gonzalez, Christine Lewis, Lynn Peterson, and Bob Stacey, all in their official capacities as Metro councilors; and Multnomah County, Defendants.
CourtU.S. District Court — District of Oregon

Christopher James, The James Law Group, LLC, 5201 SW Westgate Drive, Suite 111, Portland, OR 97221, Attorney for Plaintiff.

Christopher A. Gilmore, Nathan D. Sramek, Multnomah County Attorneys, 501 SE Hawthorne Blvd., Suite 500, Portland, OR 97214, Jill Schneider, Oregon Department of Justice, 100 SW Market Street, Portland, OR 97201, Caroline E.K. MacLaren, Roger A. Alfred, Office of Metro Attorney, 600 NE Grand Avenue, Portland, OR 97232, Attorneys for Defendants.


HERNÁNDEZ, District Judge:

Plaintiffs Katherine Blumenkron, David Blumenkron, and Springville Investors, LLC, bring this 42 U.S.C. § 1983 and state law action against Defendants Anyeley Hallova, Robin McArthur, Catherine Morrow, Katie Pearmine, Gerardo Sandoval, and Stuart Warren, all in their official capacities as members of the Oregon Land Conservation and Development Commission ("State Defendants"); Sam Chase, Shirley Craddick, Craig Dirksen, Juan Carlos Gonzalez, Christine Lewis, Lynn Peterson, and Bob Stacey, all in their official capacities as Metro councilors ("Metro Defendants"); and Multnomah County alleging Oregon's Land Reserves Statute, and Defendants’ designation of Plaintiffs’ property as rural reserve under the statutory scheme, violate Plaintiffs’ Equal Protection and Due Process rights under the Fourteenth Amendment to the U.S. Constitution and Equal Protection rights under Article I, Section 20 of the Oregon Constitution. Currently before the Court are DefendantsMotions to Dismiss Plaintiffs’ Amended Complaint. The Court grants Defendants’ Motions.


In 2007, Oregon passed SB 1011, codified at Oregon Revised Statute §§ (" O.R.S.") 195.137 – 195.145 ("Land Reserves Statute"), defining urban and rural reserves and authorizing Metro and Clackamas, Multnomah, and Washington Counties to jointly and concurrently designate urban and rural reserves in the Portland metropolitan area. Am. Compl. ¶¶ 1, 24, ECF 11. Under the Land Reserves Statute, Metro and the counties may enter into intergovernmental agreements to designate lands as urban reserves for a period of at least 20 years but not more than 30 years beyond the 20-year urban growth boundary ("UGB") planning period. Id. at ¶ 27.1 Urban reserves are areas designated for future expansion of the UGB, whereas land designated as rural reserve are foreclosed from future changes in use, development, or inclusion in the UGB for a period of at least 40 to 50 years. Id. at ¶¶ 1, 27-28.

Urban reserves are defined as lands outside the UGB that will provide for "future expansion over a long-term period" and "cost-effective provision of facilities and services within the area when the lands are included within the [UGB]." O.R.S. 195.137(2). Rural reserves are defined as "land reserved to provide long-term protection for agriculture, forestry or important natural landscape features that limit urban development or help define appropriate natural boundaries of urbanization, including plant, fish and wildlife habitat, steep slopes and floodplains." O.R.S. 195.137(1). The Oregon Land Conservation and Development Commission ("LCDC") was tasked with "adopt[ing] by goal or by rule a process and criteria" for designating urban reserves and rural reserves. O.R.S. 195.141(4) ; O.R.S. 195.145(7). LCDC adopted regulations prescribing "criteria and factors that a county and Metro must apply when choosing lands for designation as urban or rural reserves." Or. Admin. R. ("O.A.R.") 660-027-0005(1), 660-027-0050, 660-027-0060.

Under the statute and regulations, each county is authorized to designate rural reserves within their respective borders and Metro is authorized to designate urban reserves within its metropolitan regional area. Both Metro and a county must agree to the designation of land as urban or rural reserve within that county. O.R.S. 195.141, 195.143(2) - (3), 195.145. LCDC is tasked with overseeing the process by ensuring that Metro and the counties properly apply the factors via periodic review of the final decisions. LCDC's standard of review is to determine "whether there is substantial evidence in the record as a whole to support the local government's decision." O.R.S. 197.633(3)(a). LCDC's final order adopting the counties’ and Metro's designations is directly appealable to the Oregon Court of Appeals. Judicial review is limited to the administrative record and the appellate court "[m]ay not substitute its judgment for that of the [LCDC] as to an issue of fact." O.R.S. 197.650 - 197.651.

Plaintiffs’ properties, together comprising 76 acres, were included in a study area of approximately 2,500 acres situated in Multnomah County. Am. Compl. ¶ 3. In December 2009, the Multnomah County Board of County Commissioners ("County Board") adopted a resolution by a 5-0 vote recommending that the study area not receive a reserve designation (neither urban reserve nor rural reserve). Id. On February 25, 2010, the County Board changed course and, by vote of 3-2, adopted an intergovernmental agreement with Metro that designated the full study area containing Plaintiffs’ properties as rural reserve. Id. In explaining the change, one Metro Councilor noted that she had considered numerous communications from constituents who overwhelmingly supported a rural reserve designation. Id. at ¶¶ 3, 64.

At the public forum preceding the County Board's vote, Plaintiffs and other interested parties were each allocated less than five minutes to present testimony regarding the proposed urban and rural reserves designations. Id. at ¶ 57. Plaintiffs presented evidence that various government entities were able and willing to provide urban services to the area, as well as other evidence that supported an urban reserve designation for that area. Id.

Multnomah County adopted Ordinance 1161 on May 13, 2010, which approved the urban and rural reserve designations and stated reasons and conclusions for the various designations. Id. at ¶ 70. Metro then held a public hearing on the urban and rural reserve recommendations on May 20, 2010. Id. at ¶ 74. On June 3, 2010, Metro passed Ordinance No. 10-1238A formally adopting Clackamas, Multnomah, and Washington Counties’ urban and rural reserve designations without change. Id. at ¶ 75. Plaintiffs allege Multnomah County's and Metro Defendants’ decisions to designate their property as "rural reserve was not based upon consideration of the applicable urban and rural reserve factors, but was instead based upon personal and political considerations, caprice, and impermissible deal-making." Id. at ¶ 65.

In October 2010, LCDC held a four-day public hearing on the reserve designations to review objections, hear argument from parties, and decide what action to take in response to the objections. Id. at ¶ 81. LCDC remanded two areas to Metro and Washington County for further consideration. LCDC approved the remaining designations submitted by Metro and the counties, including the rural designation for area 9B (the area containing Plaintiffs’ properties) in Multnomah County. Id. at ¶ 82.

After Metro and the counties resubmitted their reserves designations, LCDC held a public hearing in August 2011. Id. at ¶ 83. LCDC voted to acknowledge Metro's and the counties’ revised submittals in their entirety. Id. Later that month, LCDC issued "Compliance Order 12-ACK-001819 (the ‘First Acknowledgement Order’)," acknowledging the urban and rural reserves submittal. Id. at ¶ 84. Plaintiffs allege "LCDC did not know, nor seek to determine, the location or boundaries of Area 9B when it reviewed the decisions of Metro and Multnomah County ..., nor when it reviewed and rejected Plaintiffs’ objections to that designation" because the First Acknowledgement Order "set forth a description of Area 9B that is incorrect." Id. at ¶ 85.

On February 27, 2012, Plaintiffs filed an action in this Court challenging their rural reserve designation. Id. at ¶ 87. This Court abstained "from litigating in this federal forum any of the state-law land use issues relating to the designation of urban and rural reserves" as established by Oregon statutes and administrative rules and concluded Plaintiffs did not "allege sufficient facts to state a claim" under 42 U.S.C. § 1983 on their Fourteenth Amendment Equal Protection claim. Blumenkron v. Eberwein , No. 3:12-CV-00351-BR, 2013 WL 786211, at *9-10 (D. Or. Mar. 1, 2013). Plaintiffs and multiple other parties also appealed the First Acknowledgment Order to the Oregon Court of Appeals. Id. at ¶ 88. The Oregon Court of Appeals ordered LCDC to remand the entirety of Washington County's reserves designations for reconsideration. Barkers Five, LLC v. Land Conservation and Dev. Comm'n , 261 Or. App. 259, 364, 323 P.3d 368 (2014) (" Barkers Five I "). The Court of Appeals also determined that LCDC erred in approving Multnomah County's reserves designation for area 9D, which does not include Plaintiffs’ properties. But the court ordered LCDC to determine the effect of that error on the designations of reserves in Multnomah County as a whole. Id.

In response to Barkers Five I , on April 1, 2014, the Oregon Legislature passed HB 4078, which established reserves designations in Washington County and made other land designated as urban reserve part of the UGB. Id. at ¶ 90. On March 16, 2015, LCDC remanded several areas to Metro and Multnomah and...

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