Exit 282a Dev. Co. v. Eberwein

• Decision Date: 28 September 2015
• Docket Number: 3:12-cv-00939-BR
• Court: U.S. District Court — District of Oregon
• Parties: EXIT 282A DEVELOPMENT COMPANY, LLC, and LFGC, LLC, Plaintiffs, v. BARTON EBERWEIN, in his official capacity as a member of the Land Conservation & Development Commission; GREG MACPHERSON, in his official capacity as a member of the Land Conservation & Development Commission; TOM HUGHES, in his official capacity as a Metro Councilor; SHIRLEY CRADDICK, in her official capacity as a Metro Councilor; CARLOTTA COLLETTE, in her official capacity as a Metro Councilor; KATHRYN HARRINGTON, in her official capacity as a Metro Councilor; PAUL SAVAS, in his official capacity as a member of the Clackamas County Board of Commissioners; JIM BERNARD, in his official capacity as a member of the Clackamas County Board of Commissioners; CLACKAMAS COUNTY; JERRY LIDZ, in his official capacity as a member of the Land Conservation & Development Commission; CATHERINE MORROW, in her official capacity as a member of the Land Conservation & Development Commission; SHERMAN LAMB, in his official capacity as a member of the Land Conservation & Development Commission; ROBIN MCARTHUR, in her official capacity as a member of the Land Conservation & Development Commission; MELISSA CRIBBINS, in her official capacity as a member of the Land Conservation & Development Commission; CRAIG DIRKSEN, in his official capacity as a Metro Councilor; SAM CHASE, in his official capacity as a Metro Councilor; BOB STACEY, in his official capacity as a Metro Councilor; JOHN LUDLOW, in his official capacity as a member of the Clackamas County Board of Commissioners; and MARTHA SCHRADER, in her official capacity as a member of the Clackamas County Board of Commissioners, Defendants.

EXIT 282A DEVELOPMENT COMPANY, LLC, and LFGC, LLC, Plaintiffs, v. BARTON EBERWEIN, in his official capacity as a memberof the Land Conservation & Development Commission; GREG MACPHERSON,in his official capacity as a member of the Land Conservation & Development Commission;TOM HUGHES, in his official capacity as a Metro Councilor; SHIRLEY CRADDICK,in her official capacity as a Metro Councilor; CARLOTTA COLLETTE,in her official capacity as a Metro Councilor; KATHRYN HARRINGTON,in her official capacity as a Metro Councilor; PAUL SAVAS,in his official capacity as a member of the Clackamas County Boardof Commissioners; JIM BERNARD, in his official capacity as a memberof the Clackamas County Board of Commissioners; CLACKAMAS COUNTY; JERRY LIDZ,in his official capacity as a member of the Land Conservation & Development Commission;CATHERINE MORROW, in her official capacity as a memberof the Land Conservation & Development Commission; SHERMAN LAMB,in his official capacity as a member of the Land Conservation & Development Commission;ROBIN MCARTHUR, in her official capacity as a memberof the Land Conservation & Development Commission; MELISSA CRIBBINS,in her official capacity as a member of the Land Conservation & Development Commission;CRAIG DIRKSEN, in his official capacity as a Metro Councilor; SAM CHASE,in his official capacity as a Metro Councilor; BOB STACEY,in his official capacity as a Metro Councilor; JOHN LUDLOW,in his official capacity as a member of the Clackamas County Boardof Commissioners; and MARTHA SCHRADER, in her official capacityas a member of the Clackamas County Board of Commissioners, Defendants.

3:12-cv-00939-BR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

September 28, 2015

OPINION AND ORDER

STEPHEN F. ENGLISH

KRISTINA J. HOLM

TERESA G. JACOBS

Perkins Coie, LLP

1120 N.W. Couch Street, 10th Floor

Portland, OR 97209-4128

(503) 727-2003

Attorneys for Plaintiffs

ELLEN F. ROSENBLUM

Oregon Attorney General

DARSEE STALEY

JACQUELINE SADKER KAMINS

Assistant Attorneys General

Oregon Department of Justice

1515 S.W. Fifth Avenue, Suite 410

Portland, OR 97201

(971) 673-1880

Attorneys for Defendants Barton Eberwein, Greg MacPherson, Jerry Lidz, Catherine Morrow, Sherman Lamb, Robin McArthur, and Melissa Cribbins

MATTHEW J. KALMANSON

KAREN M. O'KASEY

Hart Wagner, LLP

1000 S.W. Broadway, Suite 2000

Portland, OR 97205

(503) 222-4499

MICHELLE A. BELLIA

Office of Metro Attorney

600 N.E. Grand Avenue

Portland, OR 97232

(503) 797-1526

Attorneys for Defendants Tom Hughes, Shirley Craddick, Carlotta Collette, Kathryn Harrington, Craig Dirksen, Sam Chase, and Bob Stacey

STEPHEN LEWIS MADKOUR

ALEXANDER GORDON

Clackamas County Counsel

2051 Kaen Road, 4th Floor

Oregon City, OR 97045

(503) 742-5392

Attorneys for Defendants Paul Savas, Jim Bernard, Clackamas County, John Ludlow, and Martha Schrader

BROWN, Judge.

This matter comes before the Court on the following Motions:

1. Motion (#136) for Summary Judgment filed by DefendantsPaul Savas, Jim Bernard, John Ludlow, Martha Schrader, and Clackamas County (collectively referred to herein as Clackamas County Defendants);

2. Motion (#149) for Judgment on the Pleadings filed by Defendants Melissa Cribbins, Barton Eberwein, Sherman Lamb, Jerry Lidz, Greg MacPherson, and Catherine Morrow (collectively referred to herein as State Defendants); and

3. Motion (#150) for Judgment on the Pleadings filed by Defendants Sam Chase, Carlotta Collette, Shirley Craddick, Craig Dirksen, Kathryn Harrington, Tom Hughes, and Bob Stacey (collectively referred to herein as Metro Defendants).

As noted, State Defendants and Metro Defendants each filed a Motion (#149, #150) for Judgment on the Pleadings. Through the course of litigating these Motions, however, the parties have relied extensively on factual material outside of Plaintiffs' pleadings. Accordingly, on July 21, 2015, the Court CONVERTED State Defendants' Motion (#149) for Judgment on the Pleadings and Metro Defendants' Motion (#150) for Judgment on the Pleadings into Motions for Summary Judgment pursuant to Federal Rule of Civil Procedure 12(d) and gave the parties an opportunity to submit additional materials appropriate for summary-judgment motions.

For the reasons that follow, the Court GRANTS the Clackamas County Defendants' Motion for Summary Judgment, the StateDefendants' Motion for Summary Judgment, and the Metro Defendants' Motion for Summary Judgment and DISMISSES this matter without prejudice.

The Court notes Plaintiffs conceded in their response to the State Defendants' Motion that they do not have any ripe claims against the State Defendants because there is not presently any final action from the Land Conservation and Development Commission (LCDC) that affects Plaintiffs' property. Accordingly, on May 11, 2015, Plaintiffs and State Defendants filed a Joint Stipulation (#158) to Entry of Judgment of Dismissal of State Defendants to which Clackamas County Defendants objected. Because the Court grants Defendants' respective Motions for Summary Judgment, however, the Court concludes the Joint Stipulation entered into by Plaintiffs and State Defendants is moot.

BACKGROUND

The following facts are undisputed:

Plaintiffs raise equal-protection challenges under the United States Constitution and the Oregon Constitution to Defendants' designation as a "rural reserve" for long-term, land-use planning purposes of an area in Clackamas County that includes Plaintiffs' land.

Metro is a metropolitan service district responsible for,among other services, coordinating land-use planning in the Portland metropolitan area. Metro serves an area covering portions of Multnomah County, Washington County, and Clackamas County (collectively referred to herein as the Counties). Metro is responsible for certain land-use planning regulations, including the adoption of an urban-growth boundary (UGB) around the Portland metropolitan area that sets the outer boundary for urban development.

The Oregon State Legislature, however, has provided for a process whereby Metro and the Counties may, under certain circumstances, designate some areas outside of the UGB as "urban reserves" in which greater development may be permitted or "rural reserves" in which additional development is prohibited for a period of up to 50 years. As noted, Plaintiffs bring federal and Oregon constitutional challenges to the designation by Metro and the Counties of an area that includes Plaintiffs' land as a "rural reserve."

I. Statutory Substantive Standards

In 2007 the Oregon State Legislature authorized Metro and the Counties jointly and concurrently to designate lands outside of Portland's UGB as urban reserves or rural reserves.

Metro and the Counties were to designate urban reserves "[t]o ensure that the supply of land available for urbanization is maintained." Or. Rev. Stat. § 195.145(1). The maximumallowable amount of urban reserves is determined according to the UGB planning period. The UGB must be set in a way that is sufficient to accommodate housing needs for 20 years. See Or. Rev. Stat. § 197.296(2). Urban reserves also "must be planned to accommodate population and employment growth for at least 20 years, and not more than 30 years" after the 20-year UGB planning period. Or. Rev. Stat. § 195.145(4). In effect, therefore, Metro and the Counties must designate enough urban reserves to accommodate projected population and employment growth for at least the next 40 years but no more than 50 years. When determining the land to designate as an urban reserve, Metro and the Counties are to consider factors including, but not limited to, whether the land

(a) Can be developed at urban densities in a way that makes efficient use of existing and future public infrastructure investments;

(b) Includes sufficient development capacity to support a healthy urban economy;

(c) Can be served by public schools and other urban-level public facilities and services efficiently and cost-effectively by appropriate and financially capable service providers;

(d) Can be designed to be walkable and served by a well-connected system of streets by appropriate service providers;

(e) Can be designed to preserve and enhance natural ecological systems; and

(f) Includes sufficient land suitable for a range of housing types.

Or. Rev. Stat. § 195.145(5).

Rural reserves are to be designated "to provide long-term protection to the agricultural industry." Or. Rev. Stat. § 195.141(3). Unlike urban reserves, the Legislature did not place any limitation on the amount of rural reserves that Metro and the Counties can designate. In designating rural reserves, Metro and the Counties are to consider factors including, but not limited to, whether the land

(a) Is situated in an area that is otherwise potentially subject to urbanization during the period described in subsection (2)(b) of this section, as indicated by proximity to the urban growth boundary and to properties with fair market values that significantly exceed agricultural values;

(b) Is capable of sustaining long-term agricultural operations;

(c) Has suitable soils and available water where needed to sustain long-term agricultural operations; and

(d) Is suitable to sustain long-term agricultural operations, taking into account:

(A) The existence of a large block of agricultural or other resource land with a concentration or cluster of farms;

(B) The adjacent land use pattern, including its location in relation to adjacent nonfarm uses and the existence of buffers between agricultural operations and nonfarm uses;

(C) The agricultural land use pattern, including parcelization, tenure and ownership patterns; and

(D) The sufficiency of agricultural infrastructure in the area.

Or. Rev. Stat. § 195.141(3). Land designated as a rural reservecannot be included within a future expansion of the UGB or redesignated as an urban reserve during the urban-reserve planning period. Or. Rev. Stat. § 195.141(2). Rural reserves, therefore, are "essentially not subject to urban development for up to a total period of 40...