Brown v. City of Medford

• Decision Date: 05 July 2012
• Docket Number: 082689L7,A147176.
• Citation: 251 Or.App. 42,283 P.3d 367
• Parties: Jed BROWN, Plaintiff–Respondent, v. CITY OF MEDFORD, Defendant–Appellant.
• Court: Oregon Court of Appeals

251 Or.App. 42

283 P.3d 367

Jed BROWN, Plaintiff–Respondent,

v.CITY OF MEDFORD, Defendant–Appellant.

082689L7; A147176.

Court of Appeals of Oregon.

Argued and Submitted Nov. 21, 2011.

Decided July 5, 2012.

John R. Huttl, City of Medford, City Attorney's Office, argued the cause and filed the brief for appellant.

Erik J. Glatte, Medford, argued the cause and filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

SCHUMAN, P.J.

Plaintiff applied to the City of Medford for approval to partition his parcel into a northern lot and southern lot. The city's planning commission approved a tentative plan of the partition, but on the condition that plaintiff dedicate an easement over the southern lot for a future public street. Plaintiff then filed a complaint alleging that the city's exaction of the easement violated the Takings Clause of the Fifth Amendment to the United States Constitution; Article I, section 18, of the Oregon Constitution; and ORS 197.796. After a series of pretrial rulings, the city stipulated to the entry of a judgment awarding plaintiff $15,000 in damages as well as his attorney fees but reserved its right to appeal the earlier adverse rulings. The city now exercises that right and argues (1) that plaintiff's claims were not ripe for adjudication, but if they were, then the trial court (2) erred in ruling that there was no “essential nexus” between the proposed development and the city's exaction and (3) ultimately chose the wrong date for valuing the exaction. For the reasons that follow, we affirm.

The relevant facts for purposes of this appeal are undisputed. Plaintiff owned a half-acre parcel that was bordered to the north by Finley Lane and to the south by a development called the West McAndrews Subdivision. Plaintiff applied to the city for tentative plan approval of a two-lot partition of his parcel. He proposed to create a northern lot and a southern “flag lot,” both of which would have ingress and egress via Finley Lane to the north.

By the time that plaintiff sought approval of the partition, the city had already granted tentative plan approval of the West McAndrews Subdivision. One of the conditions of that earlier approval required the subdivision's developer to dedicate and improve a half-width street, Brady Way, on its northern boundary—the boundary that abuts plaintiff's parcel. Notwithstanding that approval, Brady Way had not been improved or dedicated to the city by the time of plaintiff's partition application.

Plaintiff did not propose any access from his property onto Brady Way. Instead, he proposed to use Finley Lane to the north for both lots. Nonetheless, the Medford Public Works Department recommended that the city's planning commission impose a condition on plaintiff's two-lot partition that would expand the yet-to-be-dedicated Brady Way into a full-width public street. Specifically, the Public Works Department recommended that plaintiff be required to “dedicate 19 feet of public right-of-way along [the] south side of this proposed land partition for the remainder of the north half of right-of-way for Brady Way[.]”

The Medford Public Works Department justified the condition as follows:

“Local street right-of-way dedication and construction requirements identified by the Public Works Department and required by the City are the minimum required to protect the public interest and are necessary for additional or densification of development in the City without detracting from the common good enjoyed by existing properties. Developments are required to provide half-street improvements to abutting streets, including associated right-of-way dedications, to ensure that new development and density intensification provides the current level of urban services and adequate street circulation is maintained.

“The benefits of public right-of-way dedication and improvements include: providing access and transportation connection at urban level of service standards, on street parking, improved connectivity reducing all modes of trips generated, decreased emergency response times, benefits from using right-of-way to provide public utility services, the additional traffic that is being generated by this proposed land division and the necessity to provide connections for all modes of trips generated.”

At a public hearing before the planning commission, plaintiff opposed that condition on the ground that there was no nexus between his proposed partition and the dedication demanded by the city, but the planning commission adopted the recommendation. Plaintiff then appealed the planning commission's decision to the city council, again arguing that the city had failed to demonstrate a nexus between the effect of his partition and the city's desire to widen Brady Way—a right of way that his parcels would not even access. In its final order affirming the planning commission's decision, the city council reasoned as follows:

“[Plaintiff] claims there is no nexus between this required dedication of Brady Way and the City's claimed code requirements that development not prevent future adequacy of transportation system under Medford Code section 10.452, 10.453 and 10.471.

“However, Brady Way was already approved by the planning commission to be located in that area as a result of the neighboring plat * * *, and if [plaintiff's] proposed land division was approved without the required dedication, it would prevent future connectivity with pedestrian traffic and interfere with other modes of transportation. There is a nexus.”

After the city council affirmed the tentative plan approval—including the required dedication of the right of way—plaintiff filed this action. He alleged that the required dedication constituted an “impermissible exaction as there is no public need for the same, there is virtually no impact on public infrastructure and services as a result of the proposed development of the subject property, no nexus, and the exaction is not roughly proportional to the proposed development.” Plaintiff alleged claims under Article I, section 18, of the Oregon Constitution (“Private property shall not be taken for public use * * * without just compensation[.]”) and the Fifth Amendment (“nor shall private property be taken for public use, without just compensation”). ¹ He also alleged a claim under ORS 197.796, a statute that allows land use applicants to “accept” unconstitutional conditions of approval and then simultaneously challenge them in state court.² Among other things, that statute provides that, “[i]n any challenge to a condition of approval that is subject to the Takings Clause of the Fifth Amendment to the United States Constitution,the local government shall have the burden of demonstrating compliance with the constitutional requirements for imposing the condition.” ORS 197.796(4).

Initially, the city moved to dismiss plaintiff's complaint on the ground that “the facts as alleged fail to state a claim under Oregon takings jurisprudence, and the court has no jurisdiction under the federal exhaustion and ripeness requirements,” citing, among other authorities, Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 193–95, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (explaining that a federal takings claim based on government regulations is not “ripe” until a local government has reached a final decision and the plaintiff has sought “compensation through the procedures the State has provided for doing so”). The trial court denied the motion to dismiss. ³

The parties subsequently filed cross-motions for summary judgment on the question whether the city had, in the language of ORS 197.796(4), carried its “burden of demonstrating compliance with the constitutional requirements for imposing the condition.” The relevant constitutional requirements, the parties agreed, derived from two Supreme Court cases, Nollan v. California Coastal Comm'n, 483 U.S. 825, 831–32, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). Together, those cases establish a two-part test for assessing the constitutionality of a government exaction of a dedication of private property: First, the exaction must substantially advance the same government interest that would furnish a valid ground for denial of the development permit—also known as the “essential nexus” prong of the test. Nollan, 483 U.S. at 836–37, 107 S.Ct. 3141. Second, the nature and extent of the exaction must be “roughly proportional” to the effect of the proposed development. Dolan, 512 U.S. at 385, 114 S.Ct. 2309.

The parties agreed to develop the summary judgment record in two phases. They asked the court to consider, initially, whether there was a nexus between the city's exaction and the government interest that would have allowed the city to deny the permit. If the court determined that there was such a nexus, then the city would be allowed to present further evidence on the question of “rough proportionality.” The court, following that procedure, ruled that the city had failed to demonstrate the required nexus, thus ending the inquiry regarding the constitutionality of the exaction. Accordingly, the court granted plaintiff's motion for summary judgment on that question, denied defendant's cross-motion, and set the case for trial solely on the issue of damages for the unconstitutional exaction.

In September 2010, in anticipation of the upcoming trial date, the city filed a motion asking that the jury instructions “reflect a date of August 10, 2010, to be used as the date of valuation for plaintiff's takings claims.” The city argued that “[t]he date of valuation on an inverse condemnation action is the date of physical invasion. Here, the physical invasion by the City is the dedication of plaintiff's property to the City for use as public right of way,” and the date of that dedication, the city insisted, was ...