West Linn Corporate Park v. City of West Linn

• Decision Date: 28 July 2008
• Docket Number: No. 05-36061.,No. 05-36062.,05-36061.,05-36062.
• Citation: 534 F.3d 1091
• Parties: WEST LINN CORPORATE PARK L.L.C., Plaintiff-Appellee, v. CITY OF WEST LINN; Boris Piatski; John Does 1-10, Defendants-Appellants. West Linn Corporate Park L.L.C., Plaintiff-Appellant, v. District of Oregon, City of West Linn; Boris Piatski; John Does 1-10, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

534 F.3d 1091

WEST LINN CORPORATE PARK L.L.C., Plaintiff-Appellee, v. CITY OF WEST LINN; Boris Piatski; John Does 1-10, Defendants-Appellants.

West Linn Corporate Park L.L.C., Plaintiff-Appellant, v. District of Oregon, City of West Linn; Boris Piatski; John Does 1-10, Defendants-Appellees.

No. 05-36061.

No. 05-36062.

United States Court of Appeals, Ninth Circuit.

July 28, 2008.

Robert E. Franz, Jr., Esq., Law Office of Robert E. Franz, Springfield, OR, for the City of West Linn.

Donald Joe Willis, Esq., Schwable, Williamson & Wyatt, Portland, OR, for West Linn Corporate Park, LLC.

D.C. No. CV-01-01787-DCA, District of Oregon, Portland.

Before: RICHARD C. TALLMAN and RICHARD R. CLIFTON, Circuit Judges, and EDWARD R. KORMAN,^* District Judge.

OPINION

West Linn Corporate Park, LLC (WLCP) commenced this action in the Circuit Court for Clackamas County, Oregon, against the City of West Linn and other defendants (collectively the City) alleging that the conditions the City placed on the approval of the development of the West Linn Corporate Park amounted to an inverse condemnation under the Oregon Constitution and an uncompensated taking under the Fifth Amendment to the United States Constitution. The City subsequently removed the matter to the United States District Court for the District of Oregon where the City asserted counterclaims seeking a maintenance bond from WLCP and other equitable relief relating to the vacation of a street abutting WLCP's property.

Following a bench trial, the district court entered judgment in favor of the City on WLCP's inverse condemnation and takings claims with respect to off-site improvements WLCP constructed. The district court also denied the City's counterclaims and granted judgment in favor of WLCP on WLCP's takings and inverse condemnation claim relating to the vacation of the abutting street. Finally, the district court granted judgment in WLCP's favor on its First Amendment retaliation claim. The parties cross appealed, and we consolidated the two cases for review.

At their core, the issues presented in this appeal are inextricably intertwined with WLCP's claims of inverse condemnation under Oregon law, and federal law requires us to first resolve these state-law causes of action before reaching the merits of the federal takings arguments. See, e.g., Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (at a minimum, a federal takings claim is not ripe for review unless the State has been given the opportunity to deny with finality just compensation for an alleged taking).

This order certifies to the Supreme Court of Oregon three dispositive questions of Oregon law to guide our federal takings analysis. First, we ask whether a plaintiff bringing an inverse condemnation action alleging that a condition of development amounts to an exaction or a physical taking is required to exhaust available local remedies as a prerequisite to bringing his claim in state court. Second, we ask whether a condition of development that requires a plaintiff to construct off-site public improvements, as opposed to dedicating an interest in real property such as granting an easement to a municipal entity, can constitute an exaction or physical taking. Third, we ask whether the vacation of a street approved by the City Council purporting to act pursuant to Or. Rev. Stat. § 271.110 is ultra vires where the petition does not comply with the landowner consent provisions of Or.Rev.Stat. § 271.080.

I

We provide the following factual background.¹ The history of this case dates back to 1903 when the City of West Linn, Oregon, recorded the Willamette Tracts subdivision plat. As part of the subdivision, Greene Street and 13th Street were dedicated to the City. Greene Street was located on the northern border of the subdivision; 13th Street divided lots four and five on the plat. A modern day approximation is graphically depicted below:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On November 4, 1996, the Willamette Christian Church of West Linn conveyed lot five on the plat to Randal Sebastian for $862,553. Sebastian was associated with the Renaissance Development Corporation, and on November 24, 1997, that entity submitted to the City a design review application for what would become the West Linn Corporate Park, owned by the plaintiff in this case. Ultimately, WLCP obtained lot six on the plat as well.

Around the same time, nearby properties in the subdivision began to develop. On February 10, 1998, the City issued a final order approving the "Summerlinn Apartments," a multi-unit residential development owned by Show Timber Company. The apartments would be located to the north of WLCP, and based on Show Timber's proposal, traffic to the apartment complex was to be routed thru the intersection of Greene Street and 13th Street.²

On March 6, 1998, the City approved Renaissance's design for the corporate park, albeit with caveats — the approval was conditioned on the construction and delivery of public improvements to the City. Those conditions included fourteen requirements:

1. The applicant shall conform to all Federal, State and Local policies and codes unless granted a written waiver, modification and/or variance by the appropriate deciding body.

2. The applicant shall deed or dedicate along the development's Blankenship Road frontage, and construct half street improvements along Blankenship Road, consistent with the 10th Street corridor study build-out pavement width requirements and Chapter 92 of the West Linn Community Development Code (the requested sidewalk and planter strip modification is approved and the City Engineer shall establish the necessary Blakenship pedestrian crossing facilities)[.]

3. The applicant shall improve 13th Street from the development site to Blankenship Road according to the City Engineer's requirements (17% maximum grade as proposed is approved).

4. The applicant shall petition for vacation of the Greene Street right-of-way abutting the site. The City shall not authorize occupancy of any buildings on the site until the vacation is approved or until the Planning Director finds the issue of Greene Street otherwise resolved. The applicant shall construct a four-foot wide gravel path within 20 feet of the existing right of way from 13th Street to the easterly property boundary, or within an easement or new pedestrian pathway dedication retained by the City as a condition of vacation of the right of way. If the right of way is not vacated, the applicant shall install half-street improvements consistent with the Community Development Code or apply for and receive approval of a variance from the City....

5. The applicant shall construct the 10th street corridor improvements required by the City traffic study currently being developed by the traffic engineering consultant Kittleson & Associates. (Minimum improvements for the development shall be the construction of the two traffic signal lights and associated improvements at the west bound I-205 freeway off-ramp & 10th Street and the 10th Street & Solamo Road/Blankenship Road intersections, along with a sidewalk on the west side of 10th St. from the River Falls Shopping Center sidewalk and 8th Avenue).

6. The applicant shall grant towing and ticketing enforcement rights on the fire, life and safety access corridors within the development.

7. The applicant shall construct the private parking/driveway isles and fire turnarounds not to exceed fifteen percent and eight percent grades respectively,

8. The applicant shall provide a complete pedestrian path between: Building `A' and the 13th street sidewalk, and between Building `A' and the gravel path conditioned to be built on the current Greene Street right-of-way.

9. The applicant shall 1) meet the City's water quality requirements by constructing the Storm Drainage Master Plan regional water quality facility or if ODOT does not permit [that] project provide an in-lieu of fee to the City allowed by the City of West Linn Municipal Code ..., 2) record with the County an agreement with the City that requires the property owner to operate and maintain the private storm detention and water quality facilities, and provide third party certification to the City that it is working properly on an annual basis, 3) detain the development's storm water run-off with private detention facilities so that 2, 5, 10 and 25-year post development storm drainage release rate is equal to the 2, 5, 10, and 25-year pre-development release rate, 4) extend the 18" storm drainage main stub-out located at Blankenship Road and 13th Street to the proposed private storm system out-fall at the top of 13th Street, and 5) construct the Storm Drainage Master Plan Project ... (10th Street culvert crossing) or construct a 100-year pre-post private storm drainage detention facility for the development.

10. The applicant shall 1) finance the review of the development's fire and domestic water system demands with the City's new Water Master Plan consultant (Montgomery-Watson) to establish all necessary off-site and onsite water improvements required for the development (The preliminary analysis of the off-site Master Plan water transmission main construction improvements that will be necessary is Phase II of Willamette Falls Drive water transmission main), 2[]) perform actual fire flow tests on the various new private fire hydrants (during an induced high water demand day) that provide proof that the fire flow is adequate to meet each of the buildings fire flow requirements, 3) obtain written approval from the City Engineer and the City Fire Marshall that the necessary fire hydrant flows are available prior to any building related construction with combustible materials, 4) record with the County an agreement with the City that requires the property owner to provide annual certification to the City's ...