Exit 282A Dev. Co. v. Worrix

• Decision Date: 13 November 2013
• Docket Number: 3:12-CV-939-BR
• Parties: EXIT 282A DEVELOPMENT COMPANY, LLC, a limited liability company, and LFGC, LLC, a limited liability company, Plaintiffs, v. MARILYN WORRIX, BARTON EBERWEIN, TIM JOSI, GREG MACPHERSON, JERRY LIDZ, CATHERINE MORROW, and SHERMAN LAMB, all in their official capacities as members of the Land Conservation and Development Commission; TOM HUGHES, SHIRLEY CRADDICK, CARLOTTA COLLETTE, CARL HOSTICKA, KATHRYN HARRINGTON, REX BURKHOLDER, BARBARA ROBERTS, ROBERT LIBERTY, and ROD PARK, all in their official capacities as Metro councilors; CLACKAMAS COUNTY; and CHARLOTTE LEHAN, LYNN PETERSON, ANN LININGER, PAUL SAVAS, JIM BERNARD, and BOB AUSTIN, all in their official capacities as members of the Clackamas Board of Commissioners, Defendants.
• Court: U.S. District Court — District of Oregon

EXIT 282A DEVELOPMENT COMPANY, LLC, a limited liability company,and LFGC, LLC, a limited liability company, Plaintiffs, v. MARILYN WORRIX, BARTON EBERWEIN, TIM JOSI, GREG MACPHERSON,JERRY LIDZ, CATHERINE MORROW, and SHERMAN LAMB, all intheir official capacities as members of the Land Conservationand Development Commission; TOM HUGHES, SHIRLEY CRADDICK,CARLOTTA COLLETTE, CARL HOSTICKA, KATHRYN HARRINGTON, REX BURKHOLDER,BARBARA ROBERTS, ROBERT LIBERTY, and ROD PARK, all in their officialcapacities as Metro councilors; CLACKAMAS COUNTY; and CHARLOTTELEHAN, LYNN PETERSON, ANN LININGER, PAUL SAVAS, JIM BERNARD,and BOB AUSTIN, all in their official capacities as membersof the Clackamas Board of Commissioners, Defendants.

3:12-CV-939-BR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

DATED: November 13, 2013

OPINION AND ORDER

STEPHEN F. ENGLISH

KRISTINA J. HOLM

TERESA G. JACOBS

Perkins Coie LLP

Attorneys for Plaintiffs

ELLEN F. ROSENBLUM

Attorney General

DARSEE STALEY

JACQUELINE SADKER KAMINS

Assistant Attorneys General

Oregon Department of Justice

Attorneys for Defendant Land Conservation and

Development Commission Members (hereinafter

referred to collectively as State Defendants)

ALISON KEAN CAMPBELL

Metro Attorney

MICHELLE A. BELLIA

Senior Attorney

Office of Metro Attorney

Attorneys for Defendant Metro Councilors

(hereinafter referred to collectively as

Metro Defendants)

STEPHEN L. MADKOUR ALEXANDER GORDON

Clackamas County Counsel

Attorneys for Defendants Clackamas County and

Members of the Clackamas County Board

of Commissioners (hereinafter referred to

collectively as Clackamas County Defendants)

BROWN, Judge.

This matter comes before the Court on Metro Defendants' Motion (#69) for Judicial Notice; the Motion (#64) to Dismiss of Metro Defendants joined in part by State Defendants; and the Motion (#66) to Dismiss of State Defendants joined in part by Metro Defendants. The Court heard oral argument on Defendants' Motions on August 15, 2013, and took the Motions under advisement.

For the reasons that follow, the Court GRANTS Metro Defendants' Motion (#69) for Judicial Notice, DENIES the Motion (#64) to Dismiss of Metro Defendants joined in part by State Defendants, and DENIES the Motion (#66) to Dismiss of State Defendants joined in part by Metro Defendants.

BACKGROUND

The factual background is set out in detail in the Opinion and Order (#53) issued by the Court on March 1, 2013, and neednot be repeated here.

In its Opinion and Order (#53), the Court directed Plaintiffs to file a First Amended Complaint to cure the defects noted by the Court. On April 5, 2013, Plaintiffs filed their First Amended Complaint (#58) in which they assert a claim under 42 U.S.C. § 1983 and allege Defendants violated Plaintiffs' rights to equal protection under the Fourteenth Amendment to the United States Constitution when Defendants designated Plaintiffs' land as rural reserve rather than urban reserve for purposes of state land-use planning.¹

Plaintiffs allege Defendants, who are decision-makers in the regional land-use designation process, intentionally and irrationally treated Plaintiffs differently from other similarly-situated landowners when they designated Plaintiffs' land as rural reserve rather than urban reserve for purposes of future land-use planning "based on a personal and political predetermination . . . with a complete disregard for the statutory framework and applicable legal criteria governing the designation of the urban and rural reserves, effectively . . . preclud[ing] the opportunity [for Plaintiffs] to seek approval for potential urban development for a minimum of the next fiftyyears." Plaintiffs also allege Defendants "intentionally and irrationally treated Plaintiffs differently from other similarly-situated landowners by singling [them] out" for "personal and political" reasons when they designated Plaintiffs' property as rural reserve. As a result, Plaintiffs contend their property will remain outside of the Urban Growth Boundary (UGB) for at least fifty years.

In particular, Plaintiffs assert numerous third parties including the Port of Portland, Clackamas County Business Alliance, and Business Oregon (an Oregon state agency) opined during the urban/rural reserve-designation process that Plaintiffs' property is suitable for an urban-reserve designation (i.e., an appropriate site for future urban industrial/employment purposes). According to Plaintiffs, Defendants disregarded those opinions and the requirements of state law when they, nevertheless, "predetermined" that all land in Clackamas County south of the Willamette River, including Plaintiffs' property, should be designated as rural reserve. Plaintiffs assert that designation of their property, which prevents any future urban development, was both intentional and irrational and was based on improper reasons and motives.

Plaintiffs seek the following relief:

1) A judicial declaration that Defendants' policy, practice, and agreements in connection with the reserve designation system violate Plaintiffs' rights toequal protection of the laws as guaranteed by the Fourteenth Amendment to the Constitution of the United States;

2) A judicial declaration that Defendants' practice and policy of making land use decisions and reserve designations in a political manner, without adherence to the applicable statutes to be in violation of the Fourteenth Amendment to the United States Constitution as applied to Plaintiffs' property;

4) Issuance of a preliminary and permanent injunction restraining and enjoining Defendants, their successors, agents, and employees, and all persons in active concert and participation with Defendants, from implementing, enforcing, or otherwise acting on the reserve designations adopted by Metro and Clackamas County and approved by LCDC for Plaintiffs' property;

5) Issuance of a preliminary and permanent injunction requiring Defendants, their successors, agents, employees, and all persons in active concert and participation with Defendants to designate the property as urban reserve or in the alternative, to remove the rural reserve designation from Plaintiffs' property and to apply an urban reserve factors analysis to the property, including affording Plaintiffs the opportunity for oral testimony and written submissions, and holding the analysis to the same standards as those applied to properties designated as urban reserve;

6) Issuance of a preliminary and permanent injunction enjoining Defendants from enforcing any statutes, rules, agreements, policies, or informal understandings Defendants may have by which reserve designations are applied

to Plaintiffs' property; and

7) Plaintiffs' reasonable attorney fees, costs, and disbursements, particularly those provided for under 42 U.S.C. § 1988.

First Am. Compl. at 22-23.

PROCEDURAL HISTORY

I. Opinion and Order (#53) issued March 1, 2013

On March 1, 2013, the Court entered an Opinion and Order as to all Defendants' Joint Motion (#16) to Dismiss, or in the Alternative, to Stay (Abstention) and Clackamas County Defendants' separate Motion (#14) to Dismiss pursuant to FRCP 12(b)(1), the Principles of Abstention, and FRCP 12(b)(6).

In its Opinion and Order, this Court "declin[ed] to abstain from litigating Plaintiffs' claim under 42 U.S.C. § 1983 and Article I, Section 20, of the Oregon Constitution" and directed Plaintiffs to file an amended complaint to state their two claims under 42 U.S.C. § 1983 and the Oregon Constitution separately.

In its Opinion and Order the Court also denied Clackamas County Defendants' Motion to Dismiss. The Court concluded:

Plaintiffs allege in their Complaint that their property was not treated in the same manner as similarly-situated properties during the course of the land-use designation process, thereby implicating land-use decisions made by each of the three groups of Defendants named in this case. Plaintiffs allege the land-use decisions made by each of the governing bodies that treated Plaintiffs'land differently from other similarly-situated land was intentional, irrational, and made with willful or reckless indifference to Plaintiffs and those decisions have caused Plaintiffs to incur damages and loss. The Court concludes these allegations are sufficient to state a class-of-one equal-protection claim under 42 U.S.C. § 1983 and Article I, Section 20, of the Oregon Constitution.

Opinion and Order (#53) at 16.

In its Motion to Dismiss, Clackamas County asserted (1) Plaintiffs did not sufficiently identify in their Complaint any "similarly-situated" properties that Defendants treated differently during the reserve designation process and (2) Plaintiffs' equal-protection claims were barred by the Fourteenth Amendment because the reserve designation process was the result of Defendants' discretionary decision-making authority. The Court concluded these defenses turned on factual allegations that contradicted Plaintiffs' allegations and, accordingly, could not be resolved "short of summary judgment." Opin. and Order (#53) at 13-15.

METRO DEFENDANTS' MOTION FOR JUDICIAL NOTICE

Metro Defendants request the Court to take judicial notice pursuant to Federal Rule of Evidence 201(e) of Exhibit 3 to the Declaration (#68) of Michelle A. Bellia, which is a public recor referred to as "Map of Area 4J, with tax lots identified." Asnoted, Plaintiffs' property is in Area 4J.

"[A] court may take judicial notice of 'records and reports of administrative bodies.'" Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986)(citing Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953), abrogated on other grounds by Astoria Federal Sav. and Loan Ass'n v. Solimino, 501 U.S. 104, 111 (1991).

In support of their Motion (#69), Metro Defendants filed the Declaration (#101) of Karen Scott Lowthian, a Senior Geographic Information Systems Specialist for Metro, in which she states she created Exhibit 3 as part of her work for Metro. The Court, therefore,...