Thompson v. Tualatin Hills Park & Rec.

• Decision Date: 28 July 1980
• Docket Number: Civ. No. 78-642.
• Citation: 496 F. Supp. 530
• Parties: Philip D. THOMPSON, Plaintiff, v. TUALATIN HILLS PARK AND RECREATION DISTRICT, Defendant.
• Court: U.S. District Court — District of Oregon

496 F. Supp. 530

Philip D. THOMPSON, Plaintiff, v. TUALATIN HILLS PARK AND RECREATION DISTRICT, Defendant.

Civ. No. 78-642.

United States District Court, D. Oregon.

July 28, 1980.

COPYRIGHT MATERIAL OMITTED

George M. Galloway, Andrew R. Gardner, Stoel, Rives, Boley, Fraser & Wyse, Portland, Or., for plaintiff.

Donald Joe Willis, Schwabe, Williamson, Wyatt, Moore & Roberts, John L. Schwabe, Portland, Or., Rodney C. Adams, Thompson, Adams & DeBast, Beaverton, Or., for defendant.

OPINION

DAVID S. PORTER, Senior District Judge:^*

Plaintiff, Philip D. Thompson "Thompson" brought this inverse condemnation action against the Tualatin Hills Park and Recreation District "the District" to recover damages of $58,846 for an alleged taking of Thompson's property without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and Article I Section 18 and Article XI Section 4 of the Constitution of Oregon.

Specifically, Thompson complains that the District's filing of an eminent domain action to obtain property owned by him caused him to forego an option to purchase land that could have provided a roadway into his property and allowed subdivision of his property into 21 lots for single-family homes. Thompson contends that the loss of this option significantly and permanently lowered the value of his property.

This matter was tried to the Court on April 3 and 4, 1980. We have considered the testimony, exhibits, and arguments presented at trial and have reached the following findings of fact and conclusions of law.

FINDINGS OF FACT

The property that is the subject of this lawsuit consists of two adjacent parcels of land in eastern Washington County, Oregon. One of the parcels, Tax Lot 400 on Map 1S1-12AD, has northern and southern boundary lines about 20 feet in length and eastern and western boundary lines about 325 feet in length; it has an area of approximately .15 acres. The north end of Tax Lot 400 abuts a public roadway named Southwest Canyon Drive. The other parcel, Tax Lot 200 on Map 1S1-12AD, is nearly square in shape, with sides about 615 feet in length; it has an area of approximately 7.76 acres. The western boundary of Tax Lot 200 abuts the eastern boundary of Tax Lot 400. The common boundary between the two parcels is about 185 feet long. The northwest corner of Tax Lot 200 is about 140 feet south of Southwest Canyon Drive. About 275 feet south of Tax Lot 200 is the northern end of a public roadway named Southwest 66th Avenue. A diagram indicating the relative locations of the subject property and the roadways is set out in the appendix to this opinion.

At the time of the events that gave rise to this lawsuit Thompson either had an option to purchase or had title to all of Tax Lot 200 and an undivided half-interest in Tax Lot 400. Tax Lot 400 was subject to a deed covenant that allowed any person in lawful possession of it to use it for a private roadway to adjacent property (dx 171, ¶ 5).

The subject property is in a suburban area about six miles west of downtown Portland, Oregon. It is wooded and steeply sloping land which was undeveloped at the time of the events complained of in this lawsuit (px 25, pp. 6-7).

The area is subject to Washington County land use regulations and is zoned for residential housing, up to six units in a building, with minimum lot sizes of 10,000 square feet. Current land use regulations also allow use of residential "planned unit developments" on parcels in excess of two acres. Such developments are allowed to vary from structure and lot size requirements within a particular zone (dx 111, part titled "Cartozian p. u. d." pp. 1-5).

Thompson first became interested in the subject property in 1973 while working as an architectural and land use planning consultant for a Portland-based real estate development firm, Leavitt Brothers Co. "Leavitt".¹ At that time Leavitt held an option to purchase the subject property and was making development proposals for it and an adjacent parcel to the south which had flatter terrain. Title to the subject property was held in trust by the Bank of California, N.A.; Leavitt owned the southerly parcel. By May, 1974 Leavitt was able to win approval only for its development plans for the southerly parcel. The plans for the subject parcel were abandoned (dx 111, part titled "previous studies for the property"; dx 112-115).

In April, 1975 Thompson obtained an option to purchase the subject property from the Bank of California, N.A. for $30,000 (dx 116). Thompson secured the option with a personal note for $500; it ran for six months. It was renewable for an additional six months for another $500.

In June of 1975 Thompson presented a development plan for the subject property to the Washington County Planning Commission and the Washington County Board of Adjustment. The plan called for a 12-unit townhouse — style condominium development on the northern part of the parcel with street access to the north by way of 20-foot-wide private road to Southwest Canyon Drive. This private road would be on Tax Lot 400. In order to implement this plan Thompson needed a planned unit development designation for the site because it would involve a building with more than six units. He also needed a variance from the requirement that 50-foot-wide access roads be used for this type of project.

The Planning Commission denied plaintiff's application for a planned unit development designation on July 8, 1975. The Board of Adjustment approved the variance from the 50-foot-wide standard on November 10, 1975. Both matters were reviewed by the Washington County Board of Commissioners which upheld the decisions of the Commission and Board on February 3, 1976 (dx 101, 102). The result then of Thompson's first development proposal was that his 12-unit condominium project was not approved but he could build a 20-foot-wide private access road on Tax Lot 400.

Through the application and review process Thompson became impressed that the only type of development that would be approved for the subject property was single-family housing. In mid-February, 1976, he submitted a proposal to the Planning Commission for an 18-lot subdivision of the subject property that would permit only single-family houses. See dx 103, 180. Access to all but one of the lots would be by way of an extension of Southwest 66th Avenue from the south that would end in a cul-de-sac on Tax Lot 200. This road would be on a 50-foot-wide right-of-way that would be dedicated to the public. Access to the remaining lot, which Thompson intended to use for his own home, would be by way of the already-approved 20-foot-wide private road going to Southwest Canyon Drive.

In order to achieve the desired extension of Southwest 66th Avenue onto the subject property Thompson had to make arrangements to have the street traverse parts of two undeveloped lots just south of the subject property. Those lots were then owned by Leavitt and were part of the southerly parcel adjacent to the subject property that Leavitt had received development approval for in 1974. At the time Thompson presented his 18-lot plan, Southwest 66th Avenue dead-ended in a cul-de-sac about 260 feet south of the subject property (dx 100, part titled "Raleighview II Final Master Plan").

In February, 1976 Thompson paid Leavitt $500 for an option to purchase the land necessary for the extension of Southwest 66th Avenue up to the subject parcel. The option agreement permitted Thompson to purchase designated portions of Leavitt's lots 44 and 46 for the purpose of constructing a dedicated street. The cost of the land designated was to be the $500 note plaintiff had already tendered. The agreement was subject to a number of conditions: (1) Thompson could cancel the agreement within 30 days and receive his $500 back if his feasibility studies were unsatisfactory; (2) Leavitt could cancel the agreement within 60 days of Thompson's acceptance; (3) if Leavitt chose to cancel the agreement Thompson could purchase a designated part of Lot 46 and all of Lot 44 for a total purchase price of $13,500 so long as Thompson paid the total purchase price within 60 days of Leavitt's cancellation of the agreement. The agreement was signed by Thompson on February 20 and by Leavitt on February 25 (px 22; dx 126). See diagram in the appendix to this opinion.

By an agreement signed by Thompson on February 21 and by Leavitt on February 24, Leavitt obtained an option to purchase for $65,000 "approximately 20" of the lots plaintiff planned to subdivide the subject property into (dx 127). The lot Thompson intended to use for his own home was excepted from the option (dx 128). This option was secured by Leavitt's $1,000 note. The option was conditioned upon Thompson's obtaining approvals so the lots could be built on.

Neither Thompson's option to purchase the access parcel nor Leavitt's option to purchase most of the subject property was recorded with the Washington County Registrar of Deeds.

On April 7, 1976 Thompson had a pre-application conference with the staff of the Washington County Planning Commission (dx 130) to discuss his subdivision plans for the subject property.

On about April 16, 1976 Thompson formally closed the purchase of the subject property from The Bank of California. The total price was $30,000. Thompson had already paid $1000. The balance of the purchase price came from two mortgage loans both requiring payment in full in two years. One loan, for $10,000, was from The Bank of California; the other loan, for $19,000, was from Gilco Partnership (dx 116, 125).

In a letter dated April 30, 1976 and received by Thompson on May 3, 1976 the District's attorney informed Thompson that the District intended to acquire the subject property. An offer of $50,000 was extended. The letter stated that the District would institute condemnation proceedings in 20 days if the acquisition could not be negotiated (px 10).

In a...