Dodd v. Hood River County

• Decision Date: 29 June 1995
• Docket Number: No. 93-35207,93-35207
• Citation: 59 F.3d 852
• Parties: 95 Daily Journal D.A.R. 8730 Thomas DODD and Doris Dodd, Plaintiffs-Appellants, v. HOOD RIVER COUNTY, An Oregon Municipal Corporation, Defendant-Appellee, and State of Oregon, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 852

59 F.3d 852

95 Daily Journal D.A.R. 8730

Thomas DODD and Doris Dodd, Plaintiffs-Appellants, v. HOOD RIVER COUNTY, An Oregon Municipal Corporation, Defendant-Appellee, and State of Oregon, Defendant-Intervenor-Appellee.

No. 93-35207.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Sept. 14, 1994.

Decided June 29, 1995.

John M. Groen, Pacific Legal Foundation, Bellevue, WA, for plaintiffs-appellants.

Lisa E. Lear, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, OR, for defendant-appellee.

Stephanie L. Striffler, Asst. Atty. Gen., Salem, OR, for defendant-intervenor-appellee.

Appeal from the United States District Court for the District of Oregon.

Before ALDISERT ^*, TANG and THOMPSON, Circuit Judges.

Opinion by Judge ALDISERT; Dissent by Judge TANG.

ALDISERT, Circuit Judge.

This appeal requires us first to decide whether the district court erred in dismissing for lack of ripeness the Fifth Amendment taking claim brought by Appellants Thomas and Doris Dodd, owners of real estate in Hood River County, Oregon. If we conclude that the issue is now ripe for decision, we must then decide what contentions may now be met on the merits, and if so, whether we should meet the merits or permit the District Court to do so in the first instance. For the reasons set forth below, we affirm in part and vacate in part the judgment of the district court and remand for further proceedings consistent with this opinion.

I.

In November 1983, the Dodds purchased 40 acres of land in a Forest Use Zone in Hood River County, Oregon for $33,000, intending to build a retirement home. Buyers of land in the Forest Use Zone at that time were on notice that the property was zoned exclusively for forest use, that the State had outlined mandatory goals for the management of forest use land, that the Oregon Land Use Board of Appeals ("LUBA") had issued an opinion binding Hood River County to adopt the restrictive zoning ordinance, and that the County was in the process of adopting that ordinance. The present ordinance prohibits construction of dwellings on land zoned for forest use unless the dwellings are "necessary and accessory to forest use." Hood River Co. Zoning Ord. Sec. 5.10(I)(1).

Oregon maintains a comprehensive system of land use regulation that requires coordination between state and local government agencies. The State Land Conservation and Development Commission ("State Commission") adopts a framework of mandatory state-wide land use planning goals, and reviews for compliance with those goals the comprehensive land use plans of local governments. Or.Rev.Stat. Secs. 197.225 and 197.040(2)(d); see Alexanderson v. Board of Comm'rs for Polk County, 289 Or. 427, 436, 616 P.2d 459 reh'g denied, 290 Or. 137, 619 P.2d 212 (1980).

In 1975, the State Commission adopted Goal 4, which defined forest lands, detailed the permissible uses allowed on forest land and provided guidelines for planning and implementation. ¹ In February 1983, LUBA interpreted Goal 4 as permitting the construction of dwellings in Forest Use Zones only if the buildings were "necessary and accessory to forest use." Lamb v. Lane County, 7 Or. LUBA 137, 143 (1983). Pursuant to the state schema of land use regulation, and prior to the Dodds' purchase of the property in November 1983, Hood River County initiated the process of adopting a new complying ordinance. The County published notices of the proposed changes, and informed affected land owners, including the Dodds' predecessor-in-interest.

No one gave actual notice to the Dodds that the County was considering changing the land use restrictions relative to the property. They received a report dated July 7, 1983 from the County Sanitarian stating that the parcel was suitable for a septic system. On January 24, 1984, an employee of the County Planning Department signed a Land Use Compatibility Statement stating that a proposed single-dwelling residence on the property was compatible with State-wide Land Use Planning Goals in existence at that time. On February 10, 1984, the County Sanitarian sent a letter to the Dodds stating their plan to build in two years "would appear to leave opportunity for the water supply system to be developed." However, the record demonstrates that no county official represented that the necessary building permits would be issued.

In December 1984, the County Board of Commissioners approved the ordinance requiring that forest dwellings be allowed in forest use zones only where "necessary and accessory" to forest use. ² In January 1985, the State Commission acknowledged that Hood River County's ordinance was in compliance with the state's planning goals.

Some six years passed before the Dodds made their initial inquiry with the County Planning Department about the construction of a dwelling on their property. In 1990 they filed and were denied applications for land use permits, variances, zone changes and comprehensive plan changes. Pursuant to Section 72.40 of the Zoning Ordinance, the Dodds appealed to the County Planning Commission. After conducting public hearings on the Dodds' requests, the County Planning Commission upheld the Planning Director's decision in April 1991. Thereafter, the Dodds appealed to the Board of County Commissioners, which conducted a public hearing, considered the record before the Planning Commission, and in July 1991, upheld the Planning Commission's decision.

In August 1991, the Dodds filed a Notice of Intent to Appeal with LUBA, which under state law has exclusive jurisdiction to review land use decisions. Or.Rev.Stat. Sec. 197.825. In their Petition for Review dated November 12, 1991, the Dodds contended that the County improperly construed the zoning requirements and issued a decision unsupported by substantial evidence. Pendent to these claims, the Dodds asserted a claim under the Oregon taking clause. Article I, Section 18 of the Oregon Constitution provides: "Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered[.]" LUBA has subject matter jurisdiction over federal and state constitutional claims. Or.Rev.Stat. Sec. 197.835(7)(a)(E); see Dunn v. City of Redmond, 303 Or. 201, 735 P.2d 609 (1987).

The Dodds did not pursue the taking claim under the Fifth Amendment of the United States Constitution at that time, making a specific reservation in their Petition for Review in which they "expressly reserve[d] their right to have their federal claims adjudicated in federal court."

LUBA affirmed the County's decisions, concluding: (1) the County interpreted and applied the "necessary and accessory" test in a manner consistent with that required by Oregon's appellate courts; (2) the County did not err in finding that the Dodds' proposed dwelling was not "necessary and accessory" to forest use; and (3) because the timber on the property had a value of approximately $10,000, there was no denial of a substantial beneficial use of the property and thus, no regulatory taking under the Oregon taking clause. Dodd v. Hood River County, 22 Or. LUBA 711 (1992). The Dodds appealed the LUBA decision to the Oregon Court of Appeals.

The Court of Appeals affirmed, determining that there had been no taking under the Oregon Constitution and rejecting the Dodds' argument that the regulations did not advance a legitimate governmental interest because the County allowed existing residences to remain as nonconforming uses in a Forest Use Zone. Dodd v. Hood River County, 115 Or.App. 139, 143, 836 P.2d 1373 (1992). The Dodds appealed to the Supreme Court of Oregon which, on July 22, 1993, also affirmed. Dodd et al. v. Hood River County et al., 317 Or. 172, 855 P.2d 608 (1993).

Meanwhile, as the state proceeding was ongoing, the Dodds filed a complaint under 42 U.S.C. Sec. 1983 on November 5, 1991 in federal district court against the County, asserting violations of substantive due process, equal protection and the federal taking clause of the United States Constitution as well as the Oregon taking clause. The State of Oregon intervened as a party defendant. In August 1992, the district court granted the parties' joint request for a stay pending the resolution of matters before the Oregon state court system.

In October 1992, the County and State moved for summary judgment. In January 1993, the district court heard and decided the motion at a time prior to the final decision of the Oregon Supreme Court. It dismissed as unripe the Dodds' Fifth Amendment taking claim, and entered summary judgment in favor of the County and State on all other counts. The Oregon Supreme Court has now decided the appeal adversely to the Dodds.

We are to decide whether the Dodds were required to pursue other remedies or take other action in the state court system before seeking relief in the federal court. If no further action by them was required, we are to determine the effect of the state court actions on the Dodds' federal claim, and if the federal claim is still viable we must decide whether we or the district court should consider the claim in the first instance.

Jurisdiction was proper in the district court under 28 U.S.C. Sec. 1343(a)(3). We have appellate jurisdiction under 28 U.S.C. Sec. 1291. This appeal was timely filed under Rule 4(a), Federal Rules of Appellate Procedure. This court reviews de novo a district court's order of summary judgment. McMillan v. Goleta Water Dist., 792 F.2d 1453, 1456 (9th Cir.1986), cert. denied, 480 U.S. 906, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987). Ripeness is a question of law, also reviewed de novo. Herrington v. County of Sonoma, 857 F.2d 567, 568 (9th Cir.1988), cert. denied, 489 U.S. 1090, 109 S.Ct. 1557, 103 L.Ed.2d 860 (1989).

The federal complaint alleges that the County and State deprived the Dodds' of federal constitutional protections...