O'Connor v. Cnty. of Clackamas
| Decision Date | 28 August 2012 |
| Docket Number | Case No.: 3:11-cv-1297-SI |
| Parties | KIP O'CONNOR, et al., Plaintiffs, v. COUNTY OF CLACKAMAS, et al., Defendants. |
| Court | U.S. District Court — District of Oregon |
Mark E. Griffin
GRIFFIN & MCCANDLISH
Attorneys for Plaintiffs
Stephen L. Madkour, County Counsel
Scott C. Ciecko, Assistant County Counsel
Alexander Gordon, Assistant County Counsel
Clackamas County, Oregon
Attorneys for Defendants Clackamas County, Michael McCallister, Gary Hewitt,
Steve Hanschka, and Kim Benthin
Rosewood Community Planning Association, Southgate Planning Association, and
League of Women Voters Clackamas County
This is an action brought under 42 U.S.C. § 1983, alleging violations of Plaintiffs' rights under the First and Fourteenth Amendments to the United States Constitution. Plaintiffs also assert a common law claim of intentional interference with contractual and other business relations. Plaintiffs are property owners and real estate developers. Defendants are Clackamas County, several of its employees, a community planning organization, and its chairman and board members. Defendants have moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim and have also moved to strike Plaintiffs' common law claim under Oregon's Anti-SLAPP law, Or. Rev. Stat. § 31.150(1). (Docs. 13 and 17.) For the reasons stated below, Defendants' motions are granted in part and denied in part.
The Plaintiffs in this lawsuit are Kip O'Connor ("O'Connor"), Lisa Konell ("Konell"), and Big Mountain Co., an Oregon corporation doing business as Big Mountain Excavation ("Big Mountain"). O'Connor is the sole owner of Big Mountain and a minority member in Lifestyle Ventures, LLC ("Lifestyle"), an Oregon limited liability company. Complaint ¶¶ 2-4. Lifestyleis not a party in this lawsuit. In May 2007, O'Connor purchased three lots in Rhododendron, Oregon (collectively, "the Property"), located in Clackamas County. He then transferred two of these lots to Lifestyle and one lot to Konell. Id. at ¶ 23. At all times material to this lawsuit, Lifestyle or Konell owned the three lots that comprise the Property. Id.
As originally named in the Complaint, the Defendants in this lawsuit include Clackamas County, Oregon (the "County") and the following individual County employees: Michael McAllister ("McAllister"), Director of the County Planning Division; Steve Hanschka ("Hanschka"), who works for the County Planning Division; Gary Hewitt ("Hewitt"), who works for the County Planning Division; Kimberly Benthin ("Benthin"), a Code Compliance Specialist who works for the County Department of Transportation and Planning; and Carl Cox ("Cox"), a County Hearings Officer. Id. at ¶¶ 5 and 7-11. After filing the Complaint, Plaintiffs voluntarily dismissed their claims against County employees McAllister and Hewitt. (Doc. 62.)
The Complaint also names as Defendants the Mount Hood Corridor Community Planning Organization ("MHC-CPO" or "CPO"), CPO chairman Don Mench ("Mench"), and the following individual members of the CPO board of directors: Dave Fulton ("Fulton"), Roy Bellows, Donna Bellows, and Janine Bertram ("Bertram") (collectively, the "CPO Defendants"). Id. at ¶¶ 6 and 12-13. According to the CPO Defendants, "MHC-CPO is a community-based, not-for-profit entity made up entirely of citizen volunteers who dedicate a portion of their free time to providing public input to agency decision-makers regarding local land use issues." MHC-CPO's Mem. p. 1. Although Plaintiffs contend that the MHC-CPO "performs a uniquely governmental function: land use planning," Pl. CPO Mem. p. 2, an issue discussed more fully below, Plaintiffs do not dispute the CPO Defendants' characterization of MHC-CPO stated above.
The Property is located within the Sandy/Salmon River Principal River Conservation Area ("PRCA"), a zone with special development rules. Complaint ¶¶ 17, 23. In October 2007, O'Connor met with County employee Hanschka to review both County maps and maps from the Federal Emergency Management Agency ("FEMA") and determine the Base Flood Elevations ("BFEs") for the Property. Id. at ¶ 26. A BFE is a measurement of the land elevation determined to be inundated with water during one percent of major flooding events. Id. at ¶ 19. Plaintiffs claim that these maps indicated that Plaintiffs could construct houses on the Property, provided that the BFE information was verified by obtaining elevation certificates from professional land surveyors showing that the proposed houses would be located above the BFE. Id. at ¶ 24. In 2008, Plaintiffs began their development of the Property by improving the immediately adjacent road, Relton Lane, with the authorization and consent of the County Road Department. Id. at ¶ 25.
In January 2009, the Sandy River flooded. Id. at ¶ 26. In February 2009, O'Connor received an Emergency Authorization from the Oregon Department of State Lands ("ODSL") and a "No Permit Required" letter from the Army Corps of Engineers ("ACOE"), allowing Plaintiffs to protect the Property from further erosion by constructing a revetment, id. at ¶¶ 27, 28, 30, which is a sloping structure built on a river bank to absorb the energy of incoming water.
On July 20, 2009, after the revetment was essentially completed, County employee Benthin told Lifestyle that the revetment was a potential violation of the County Code and requested that Plaintiffs submit to the County both Flood Plain Development ("FPD") and PRCA permits by August 20, 2009. Id. at ¶¶ 30, 31. On July 29, 2009, O'Connor advised Benthin that "he would begin the complex process of the FDP and PRCA permits" by August 20. Id. at ¶ 33. On July 30, 2009, Benthin sent a letter to Lifestyle and Konell explaining that the construction ofthe revetment violated the County Code and stating that if the FDP and PRCA permits were not completed by August 20, the County would take legal action and impose monetary penalties of $3,500 per day. Id. at ¶ 34.
O'Connor submitted applications for both permits on August 11, 2009. Id. at ¶ 35. Plaintiffs assert that, under Oregon law, applicants are allowed 180 days to complete such applications, which would set a deadline of February 13, 2010. Id. Also on August 11, County employee Hanschka notified Plaintiffs that the FPD application that Plaintiffs had just submitted was incomplete, and Hanschka specified a completion deadline of February 13, 2010. Id. at ¶ 36. Hanschka also advised Plaintiffs that the elevation certificate signed by Fir Wood Design Group ("Fir Wood") was unacceptable to the County because it showed the proposed building site to be below the BFE. Id. at ¶ 36. Plaintiffs allege that Hanschka knew that he was incorrectly using sites upriver from the Property to make this determination. Id. Plaintiffs allege that Hanschka continued through the fall improperly to insist that the elevation certificates obtained by Plaintiffs were inadequate, despite their alleged compliance with County requirements. Id. at ¶ 43. Hanschka also contacted Fir Wood to suggest that O'Connor had forged the certificates and that Fir Wood was not qualified to be working on this project. Id.
On August 26, 2009, the County notified Plaintiffs that their PRCA permit application was incomplete, and the County set a completion deadline of February 7, 2010. Id. at ¶ 38. On August 27, 2009, ODSL and ACOE inspected the revetment project and advised O'Connor that all sites were in compliance with their jurisdictional requirements. Id. at ¶ 39.
On September 9, 2009, Benthin notified Plaintiffs that they were illegally operating a construction business on residential property. Id. at ¶ 40. Plaintiffs maintain, however, that they had a permit to build a personal residence on the Property. Id.
On October 27, 2009, Benthin mailed citations to Plaintiffs for failure to complete the application for the FPD permit, even though the statutory deadline of February 13, 2010, to complete the application was still almost four months away. The citation imposed a "forfeiture" of $100 and "threatened penalties" of $3,500 for each property. Id. at ¶ 42.
On December 2, 2009, O'Connor submitted to the County Plaintiffs' final application documents for the FPD and PRCA permits. Id. at ¶ 46. County employee Hewitt "immediately presented" Plaintiffs with a Notice of Incomplete Application ("the Notice") that was dated the next day, December 3, 2009. Id. The Notice faulted Plaintiffs for failure to include documents that Plaintiffs allege had been included in the December 2nd submission. Id. The Notice also "indicated falsely that FEMA was concerned that the revetment . . . was illegal." Id. In addition, Hewitt told O'Connor that Hanschka had determined that Plaintiffs could not get approval of the FPD and PRCA applications without obtaining a Letter of Map Amendment ("LOMA") from FEMA. Id. Hanschka also forwarded the Notice to CPO's chairman Mench. Id.
A meeting of the CPO was held on January 7, 2010. At that meeting, McAllister, as Director of the County Planning Division, accused O'Connor of violating development and construction laws and suggested that O'Connor's construction license be revoked. Id. at ¶ 48. Plaintiffs allege that McAllister's remarks were not described in any agenda item posted in the public notice for the CPO meeting and that O'Connor was not...
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