Katherine Blumenkron, David Blumenkron, & Springville Investors, LLC v. Eberwein, 3:12-cv-00351-BR

• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Writing for the Court: BROWN, Judge.
• Decision Date: 28 September 2015
• Docket Number: 3:12-cv-00351-BR
• Parties: KATHERINE BLUMENKRON, DAVID BLUMENKRON, and SPRINGVILLE INVESTORS, 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; MULTNOMAH COUNTY; SHERMAN LAMB, 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; ROBIN MCARTHUR, in her official capacity as a member of the Land Conservation & Development Commission; JERRY LIDZ, in his 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; and BOB STACEY, in his official capacity as a Metro Councilor, Defendants.

KATHERINE BLUMENKRON, DAVID BLUMENKRON, and SPRINGVILLE INVESTORS, 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;
MULTNOMAH COUNTY; SHERMAN LAMB, 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; ROBIN MCARTHUR, in her official
capacity as a member of the Land Conservation & Development Commission; JERRY LIDZ, in
his 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; and BOB STACEY, in his official capacity as a Metro Councilor, Defendants.

3:12-cv-00351-BR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

September 28, 2015

OPINION AND ORDER

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CHRISTOPHER JAMES
The James Law Group, LLC
121 S.W. Morrison Street, Suite 910
Portland, OR 97204
(503) 228-5380

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, Sherman Lamb, Catherine Morrow, Robin
McArthur, Jerry Lidz, and Melissa Cribbins

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ALLISON KEAN CAMPBELL
MICHELLE A. BELLIA
Office of Metro Attorney
600 NE Grand Avenue
Portland, OR 97232
(503) 797-1511

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

DAVID N. BLANKFELD
JED R. TOMKINS
Office of the Multnomah County Attorney
501 S.E. Hawthorne Boulevard, Suite 500
Portland, OR 97214
(503) 988-3138

Attorneys for Defendant Multnomah County

BROWN, Judge.

This matter comes before the Court on the following Motions:

1. Motion (#132) to Dismiss filed by Defendants Melissa Cribbins, Barton Eberwein, Sherman Lamb, Catherine Morrow, Robin McArthur, Jerry Lidz, and Greg MacPherson (collectively referred to herein as State Defendants);

2. Motion (#133) to Dismiss Fifth Amended Complaint filed by Defendant Multnomah County;¹ and

3. Motion (#134) to Dismiss Pursuant to Fed. R. Civ. P. 12(b) filed by Defendants Sam Chase, Carlotta Collette, Shirley Craddick, Craig Dirksen, Kathryn Harrington, Tom Hughes, and Bob

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Stacey (collectively referred to herein as Metro Defendants).

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 (#132) to Dismiss, Multnomah County's Motion (#133) to Dismiss, and Metro Defendants' Motion (#134) to Dismiss 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 State Defendants' Motion (#132) for Summary Judgment, Multnomah County's Motion (#133) for Summary Judgment, and Metro Defendants' Motion (#134) for Summary Judgment and DISMISSES this matter without prejudice.

BACKGROUND

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

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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.

In their Fifth Amended Complaint Plaintiffs raise several federal constitutional challenges to Defendants' designation of an area in Multnomah County that includes Plaintiffs' land as a "rural reserve" for long-term, land-use planning purposes.

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 maximum allowable 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

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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

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and the Counties can designate. When 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 reserve cannot 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 to 50 years." Barkers Five, LLC v.

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Land Conservation and Dev. Comm'n, 261 Or. App. 259, 274 (2014).

II. Regulatory Substantive Standards

In addition to the substantive standards mandated by statute, the Oregon Legislature gave the LCDC rule-making authority to establish a "process and criteria for designating" urban and rural reserves. See Or. Rev. Stat. §§ 195.141(4), 195.145(6). LCDC rules define the purpose of the urban- and rural-reserve designation process:

The objective of this division is a balance in the designation of urban and rural reserves that, in its entirety, best achieves livable communities, the viability and vitality of the

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