Hoeck v. City of Portland

• Decision Date: 10 July 1995
• Docket Number: No. 93-35691,93-35691
• Citation: 57 F.3d 781
• Parties: Hans HOECK, Plaintiff-Appellant, v. CITY OF PORTLAND, a municipal corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 781

57 F.3d 781

Hans HOECK, Plaintiff-Appellant, v. CITY OF PORTLAND, a municipal corporation, Defendant-Appellee.

No. 93-35691.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 1, 1994.

Decided June 12, 1995.

As Amended July 10, 1995.

Thomas P.E. Herrmann, Gleaves, Swearingen, Larsen, Potter, Scott & Smith, Eugene, OR, for plaintiff-appellant.

James Esterkin and Marc Zwerling, Winfree, Fearey & Zwerling, Portland, OR, for plaintiff-appellant (on the briefs).

Tracy Pool Reeve, Deputy City Atty., Portland, OR, for defendant-appellee.

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

Before: FLETCHER, NELSON, and RYMER, Circuit Judges.

FLETCHER, Circuit Judge:

Plaintiff Hans Hoeck appeals from a summary judgment for the defendant City of Portland (the "City"). Hoeck argues on appeal that the district court erred because the demolition of his building constitutes a violation of substantive due process and is a taking under Oregon law. Hoeck also argues that he is entitled to a declaration under 28 U.S.C. Sec. 2201 that he is not liable for demolition costs. We have jurisdiction, 28 U.S.C. Sec. 1291, and affirm.

FACTS

Hoeck was the owner of the Bridgeport Hotel, a vacant six-story building located in Portland, Oregon. During 1984 and 1985, Hoeck made plans to renovate the Bridgeport and to add four additional stories, converting it into a ten-story office building. After obtaining a financial commitment from a lender and a building permit from the City, Hoeck commenced the renovation project. However, shortly after the project began, the City suspended construction pending a further review of his plan. About six months later, Hoeck was permitted to recommence work. Shortly thereafter, on March 6, 1986, Hoeck's financing was discontinued due to the insolvency of his lender, and he was never able to obtain replacement financing. Hoeck expended substantial sums--approximately $1 million--in connection with the project.

More than three years later, on May 15, 1989, the City took its first action against the Bridgeport. On that date, pursuant to the Portland City Code ("PCC"), the Bureau of Buildings filed a complaint with the Code Hearings Officer ("CHO") pursuant to authorization under PCC Secs. 24.55.250 and 24.55.300: It alleged that the Bridgeport was an "abandoned" structure in violation of PCC Sec. 24.15.020. Under the PCC, an abandoned structure is defined as "a structure that has been vacant for a period in excess of six months, or any period less than six months when a vacant structure or portion thereof constitutes an attractive nuisance or hazard to the public." PCC Sec. 24.15.020. The complaint also alleged that the Bridgeport was a dangerous structure under PCC Sec. 24.15.060.

Administrative hearings were held before the CHO on five occasions. During the course of these hearings, the City submitted evidence that the Bridgeport was attracting transients and drug users, contained substantial amounts of debris, and had numerous structural flaws due to its incomplete state. By the time the last hearing was held on October 4, 1991, the Bridgeport was no longer classified as a "dangerous" building. It had been secured with steel shutters, was structurally sound, and not in danger of collapse. Nevertheless, the CHO ordered the Bridgeport demolished on the grounds that it was an "abandoned" structure under PCC Sec. 24.15.020. ¹ The CHO's supplemental order, issued on October 4, 1991, further stated:

The structure ... in its current partially complete and gutted condition, remains a visual blight upon the surrounding neighborhood.

There is nothing in the record of this proceeding that would lead me to believe that further delay in the demolition of this structure would do anything other than inflict this ugly and potentially hazardous building on the neighborhood and the city for some additional, indefinite time.

On two occasions, Hoeck sought review of the demolition order in Multnomah County Circuit Court. Both times the orders were held to be enforceable. On July 27, 1992, the City began demolition and completely removed the structure from the property.

Hoeck filed his action in federal court on January 26, 1993. His complaint set forth three causes of action: 1) an action under 28 U.S.C. Sec. 1983 claiming a violation of substantive due process; 2) a claim for declaratory relief under 28 U.S.C. Sec. 2201 that because the demolition was in violation of his constitutional rights, the City could not assess its demolition costs against him; and 3) a state law inverse condemnation claim based on the district court's pendent jurisdiction, 28 U.S.C. Sec. 1367. Each party submitted a summary judgment motion on all the claims. The district court denied Hoeck's motion, granted the City's, and dismissed Hoeck's complaint. This timely appeal followed.

STANDARDS OF REVIEW

We review de novo whether the district court had jurisdiction. Carson Harbor Village Ltd. v. City of Carson, 37 F.3d 468, 474 (9th Cir.1994); Christensen v. Yolo County Bd. of Supervisors, 995 F.2d 161, 163 (9th Cir.1993).

We review de novo the district court's grant of summary judgment, viewing the evidence in the light most favorable to the nonmoving party to determine whether any genuine issues of material fact exists and whether the district court correctly applied the relevant substantive law. Christensen, 995 F.2d at 163.

"[W]e may affirm 'on any basis fairly supported by the record.' " Janicki Logging Co. v. Mateer, 42 F.3d 561, 564 (9th Cir.1994) (quoting City of Las Vegas v. Clark County, 755 F.2d 697, 701 (9th Cir.1985)).

JURISDICTION

Although the City challenged jurisdiction in the district court, neither party does so on appeal. We must nevertheless determine sua sponte whether we have jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990) ("federal courts are under an independent obligation to examine their own jurisdiction"); Harris v. Provident Life & Accident Ins. Co., 26 F.3d 930, 932 (9th Cir.1994). We review the existence of subject matter jurisdiction in the district court de novo. Allah v. Superior Court of California, 871 F.2d 887, 890 (9th Cir.1989).

The district court determined that it had federal question jurisdiction over the claim for declaratory relief and the substantive due process claim, 28 U.S.C. Sec. 1331, and pendent jurisdiction over the state takings claim, 28 U.S.C. Sec. 1367. We examine the jurisdiction as to each of these claims. We conclude that we have jurisdiction over the substantive due process claim and the state takings claim. The jurisdiction over the claim for declaratory relief is unclear and its resolution convoluted. Since we find the claim meritless in any event, we do not decide whether we have jurisdiction over it.

OVER SUBSTANTIVE DUE PROCESS CLAIM

The plaintiff contends that the district court properly based its jurisdiction on his claim that the City violated his right to substantive due process under the Fourteenth Amendment. We agree.

The Supreme Court has set forth the general rule that "[w]here a particular Amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.' " Albright v. Oliver, --- U.S. ----, ----, 114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994) (plurality) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989)). At first blush, the substantive due process claim would appear to be precluded by a more specific claim based on the Takings Clause. However, in Sinaloa Lake Owners Association v. City of Simi Valley, 882 F.2d 1398, 1408-09 n. 10 (9th Cir.1989), cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990), we held that Graham does not bar a companion substantive due process claim alleging that "the government has used its power in an abusive, irrational or malicious way." Id. at 1408-09 n. 10; see also Bateson v. Geisse, 857 F.2d 1300, 1303 (9th Cir.1988) (finding that substantive due process claim is not subject to exhaustion requirement of taking claim). Thus, we must determine whether Hoeck's section 1983 claim falls within the Sinaloa exception to Graham.

It is only with some difficulty that we are able to discover a substantive due process claim in Hoeck's pleadings. The words "substantive due process" do not appear in Hoeck's Complaint. ² It was only after the City argued that the district court lacked subject matter jurisdiction that Hoeck first breathed the words "substantive due process" and characterized his claim as challenging the City's authority to "demolish the Bridgeport Hotel solely because of its unoccupied status irrespective of the City's motives, the City's procedures or whether the City pays compensation." Plaintiff's Response to Defendant's June 15, 1993 Memorandum, at 3. On appeal, Hoeck did not argue in terms of substantive due process until his reply brief, apparently triggered by the City's mention that it had challenged jurisdiction below. In the brief, he asserted that his "substantive due process claim is based on the government's failure to treat a citizen with some minimal standard of rationality and fairness."

While the claim is certainly not artfully asserted in the complaint, we read it charitably, and since the City did not appeal the district court's finding of jurisdiction, we do not fault Hoeck's delay in addressing it directly until his reply. We somewhat reluctantly conclude that Hoeck advances a claim of substantive due process sufficient to fall within the Sinaloa exception. Therefore, we conclude that we have subject matter jurisdiction over this claim.

OVER PENDENT STATE TAKINGS CLAIM

We next consider whether the district court properly exercised pendent jurisdiction...