Blumenkron et al v. Springville Investors, LLC et al
Filing
157
Opinion and Order: The Court GRANTS the State Defendants Motion 132 for Summary Judgment, Multnomah Countys Motion 133 for Summary Judgment, and Metro Defendants Motion 134 for Summary Judgment and DISMISSES this matter without preju dice. The Court GRANTS Plaintiffs leave to renew their claims in the event that Plaintiffs claims remain viable after Defendants have rendered a final decision regarding the urban- and rural-reserve designations in the Portland metropolitan area. Signed on 09/28/2015 by Judge Anna J. Brown. See attached 26 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
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
1 - OPINION AND ORDER
3:12-cv-00351-BR
OPINION AND ORDER
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.
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
2 - OPINION AND ORDER
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
1
Although Docket #133 is titled “Memorandum in Support of
Multnomah County’s Motion to Dismiss Fifth Amended Complaint,” it
is actually Defendant Multnomah County’s Motion and Memorandum in
Support as one document as allowed under Local Rule 7-1(c).
3 - OPINION AND ORDER
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
4 - OPINION AND ORDER
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.
Rev. Stat. § 197.296(2).
See Or.
Urban reserves also “must be planned to
accommodate population and employment growth for at least 20
5 - OPINION AND ORDER
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.”
§ 195.141(3).
Or. Rev. Stat.
Unlike urban reserves, the Legislature did not
place any limitation on the amount of rural reserves that Metro
6 - OPINION AND ORDER
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.”
7 - OPINION AND ORDER
Barkers Five, LLC v.
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.
195.145(6).
See Or. Rev. Stat. §§ 195.141(4),
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 agricultural and forest
industries and protection of the important natural
landscape features that define the region for its
residents.
Or. Admin. R. 660-027-0005(2).
The LCDC rules setting out the substantive criteria that
govern the designation of urban reserves incorporate the
statutory factors from § 195.145(5) in addition to the following
factors:
(7) Can be developed in a way that preserves important
natural landscape features included in urban reserves;
and
(8) Can be designed to avoid or minimize adverse
effects on farm and forest practices, and adverse
effects on important natural landscape features, on
nearby land including land designated as rural
reserves.
Or. Admin. R. 660-027-0050.
LCDC rules also incorporate the cap
that Oregon Revised Statute § 195.145(4) places on the amount of
8 - OPINION AND ORDER
land that can be designated as urban reserves and, in addition,
provide:
Metro shall specify the particular number of years for
which the urban reserves are intended to provide a
supply of land, based on the estimated land supply
necessary for urban population and employment growth in
the Metro area for that number of years. The 20 to
30-year supply of land specified in this rule shall
consist of the combined total supply provided by all
lands designated for urban reserves in all counties
that have executed an intergovernmental agreement with
Metro in accordance with OAR 660-027-0030.
Or. Admin. R. 660-027-0040.
The LCDC rules setting out the substantive criteria that
govern the designation of rural reserves incorporate the
statutory factors from § 195.141(3), extend those factors to
apply to the timber industry in addition to agriculture, and add
a set of factors that permit the designation of land as a rural
reserve “to protect natural landscape features.”
660-027-0060(2), (3).
Or. Admin. R.
Although Metro and the Counties are
generally required to apply the statutory and regulatory factors
when determining whether any specific area will be designated as
a rural reserve, the LCDC rules contain two exceptions to this
requirement:
(1) Under Oregon Administrative Rule 660-027-
0060(4), Metro and the Counties may “deem that Foundation
Agricultural Lands or Important Agricultural Lands2 within three
2
Foundation Agricultural Lands and Important Agricultural
Lands are those lands previously designated as such by the Oregon
Department of Agriculture. See Or. Admin. R. 660-027-0010(1),
(2).
9 - OPINION AND ORDER
miles of a UGB qualify for designation as rural reserves . . .
without further explanation” and (2) under Oregon Administrative
Rule 660-027-0040(11) to the extent that the Counties and Metro
designate Foundation Agricultural Land as an urban reserve, Metro
and the Counties must provide a specific statement of reasons to
explain why that land was chosen for designation as an urban
reserve and other land was not.
III. Procedural Framework and History
“The designation of urban and rural reserves occurs through
agreements between Metro and a county.”
App. at 275.
195.145(1)(b).
Barkers Five, 261 Or.
See also Or. Rev. Stat. §§ 195.141(1), 195.143(2),
Accordingly, the urban- and rural-reserve
designations are made through intergovernmental agreements
between Metro and the individual County.
Between May 13, 2010, and June 15, 2010, Metro and the
Counties made their respective urban- and rural-reserve
designation decisions and applied the statutory and regulatory
factors on an area-wide basis; i.e., rather than apply the
factors and make designation decisions on a property-by-property
basis, Metro and the Counties subdivided the Portland
metropolitan map into a rough grid of “areas” that each contained
multiple properties and then made the designation decisions on an
area-wide basis.
On June 23, 2010, Metro and the Counties submitted to LCDC
10- OPINION AND ORDER
their joint and concurrent decision in which Metro and the
Counties designated 28,615 acres as urban reserves and 266,954
acres as rural reserves to achieve Metro-wide land-use planning
goals through 2060.
Pursuant to Oregon Administrative Rule 660-027-0080(4), LCDC
was required to review the submission of Metro and the Counties
for
(a)
Compliance with the applicable statewide planning
goals. Under ORS 197.747 "compliance with the
goals" means the submittal on the whole conforms
with the purposes of the goals and any failure to
meet individual goal requirements is technical or
minor in nature. To determine compliance with the
Goal 2 requirement for an adequate factual base,
the Commission shall consider whether the
submittal is supported by substantial evidence.
Under ORS 183.482(8)©, substantial evidence exists
to support a finding of fact when the record,
viewed as a whole, would permit a reasonable
person to make that finding;
(b)
Compliance with applicable administrative rules,
including but not limited to the objective
provided in OAR 660-027-0005(2) and the urban and
rural reserve designation standards provided in
OAR 660-027-0040; and
(c)
Consideration of the factors in OAR 660-027-0050
or 660-027-0060, whichever are applicable.
In October 2010 LCDC held a hearing concerning the designations
of Metro and the Counties.
At that hearing LCDC approved the
designations as to all but two areas in Washington County and
remanded those designations to Metro and Washington County for
further consideration.
On May 13, 2011, Metro and the Counties re-submitted their
11- OPINION AND ORDER
urban- and rural-reserve designations to LCDC after Metro and
Washington County “‘adjusted the urban and rural reserve
designations in Washington County’ in several ways,” which
resulted in a decrease of 299 acres designated as urban reserves,
a decrease of 120 acres of rural reserves, and an increase of 419
acres in “undesignated” lands.
283-84.
See Barkers Five, 261 Or. App. at
As a result, Metro and the Counties designated a total
of 28,256 acres as urban reserves and 266,628 acres as rural
reserves.
On August 18 and 19, 2011, the LCDC conducted a hearing at
which it considered 14 objections to the proposed designations.
On August 19, 2011, at the conclusion of that hearing, the LCDC
voted to acknowledge in their entirety the urban- and ruralreserve designations submitted by Metro and the Counties and
issued a 156-page Acknowledgment Order to memorialize its
decision.
See Or. Rev. Stat. § 197.626(2).
Several objectors, including Plaintiffs, appealed the LCDC’s
Acknowledgment Order to the Oregon Court of Appeals pursuant to
Oregon Revised Statute § 197.626(3).
The Oregon Court of Appeals
affirmed part of the LCDC’s Acknowledgment Order (and, thus, the
designations of Metro and the Counties), but the court concluded
the LCDC erred in the following four respects:
(1)
By determining it had the authority to affirm a
decision of Metro and the Counties on the ground that
12- OPINION AND ORDER
the evidence “clearly supports” their decision even
though the local government’s findings were inadequate.
(2)
By approving the legally impermissible application of
the rural-reserve factors to agricultural land in
Washington County.
Accordingly, the Court of Appeals
ordered LCDC to remand Washington County’s reserves
designation “as a whole.”
(3)
By approving the legally insufficient rural-reserve
designation of Area 9D in Multnomah County.
Accordingly, the Court of Appeals ordered LCDC to
remand for reconsideration of the designation of Area
9D and further ordered LCDC to “determine the effect of
that error on the designations of reserves in Multnomah
County in its entirety.”
(4)
By failing to adequately review the designations of
Areas 4A through 4D in Clackamas County as urban
reserves.
The Court of Appeals ordered LCDC to
“meaningfully explain why . . . the designation of
[Areas 4A through 4D] as urban reserves is supported by
substantial evidence.”
Barkers Five, 261 Or. App. at 363-64.
In its “Remand Order” dated March 16, 2015, the LCDC
ordered:
The Commission incorporates by reference those findings
and conclusions of Compliance Acknowledgment Order
13- OPINION AND ORDER
12-ACK-001819 concerning the application of urban and
rural reserve factors to designate certain areas as
either urban or rural reserves in Clackamas and
Multnomah counties, except those findings and
conclusions related to the designations of Rural
Reserve Area 9D and Urban Reserve Areas 4A, 4B, 4C, and
4D. Accordingly, Commission [sic] remands Rural
Reserve Area 9D to Multnomah County and Metro and Urban
Reserve Areas 4A, 4B, 4C, and 4D to Metro and Clackamas
County for further action consistent with the
principles expressed in [Barker’s Five].
Before final acknowledgment, the Commission will review
a resubmittal of the Metro Region urban and rural
reserves designations for acknowledgement of compliance
with ORS 195.141 and 195.145, OAR chapter 660, division
27, the applicable statewide planning goals, and all
other applicable rules of the Commission.
Although the LCDC did not specifically order Metro and Multnomah
County to reconsider designations other than Area 9D, it did not
preclude Metro and Clackamas County from doing so.
As noted, the
Oregon Court of Appeals required Multnomah County to “determine
the effect” of the error with respect to Area 9D “on the
designations of reserves in Multnomah County in its entirety.”
Barkers Five, 261 Or. App. at 364.
The LCDC also incorporated
into the Remand Order the findings from the Acknowledgment Order
that were not reversed by the Court of Appeals.
IV.
Plaintiffs’ Property
Plaintiffs own property in an L-shaped portion of Area 9B, a
portion of Multnomah County that has been designated as a rural
reserve under the May 13, 2011, urban- and rural-reserve
submission to LCDC.
Area 9B (and, therefore, Plaintiffs’
property) is near the community of North Bethany in west
14- OPINION AND ORDER
Multnomah County.
Area 9B was among the most thoroughly debated
areas during Multnomah County’s designation process.
Ultimately
the Multnomah County Commission voted 3-2 to designate Area 9B as
a rural reserve.
Both LCDC and the Oregon Court of Appeals affirmed the
designation of Area 9B as a rural reserve over Plaintiffs’
objection.
Accordingly, although Metro and Multnomah County may
still reconsider their designation of Area 9B, both LCDC and the
Oregon Court of Appeals have determined the designation of Area
9B in isolation is lawful.
Since remand the Oregon State Legislature has considered an
amendment that would change the rural-reserve designation of “the
L” within Area 9B and split it into three sections with one
portion designated as urban reserve, another portion remaining
undesignated, and a third portion designated as rural reserve.
The legislative session has closed, however, and there is not any
evidence that the Legislature took up action on the amendment
that proposed designation changes in “the L” nor is there any
evidence as to whether the Legislature may again consider such an
amendment when it is in session again.
Nonetheless, because LCDC
remanded the designation of Area 9D to Multnomah County and the
Oregon Court of Appeals specifically ordered Multnomah County to
consider the effect of the redesignation of Area 9D on other
areas, the Multnomah County urban- and rural-reserve designation
15- OPINION AND ORDER
process has reopened and Plaintiffs will again have an
opportunity to persuade Multnomah County to change the
designation of Area 9B or a portion thereof.
STANDARDS
Summary judgment is appropriate when there is not a “genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Washington Mut. Ins. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).
See also Fed. R.
The moving party must show the absence of a
dispute as to a material fact.
Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1146 (9th Cir. 2005).
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
. . . .
Id.
"This burden is not a light one
The non-moving party must do more than show there is
some 'metaphysical doubt' as to the material facts at issue."
In
re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
16- OPINION AND ORDER
The court must draw all
reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
Sluimer
"Summary
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
Easter v. Am. W. Fin.,
381 F.3d 948, 957 (9th Cir. 2004)(citing Sherman Oaks Med. Arts
Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598
(9th Cir. 1982)).
A “mere disagreement or bald assertion” that a genuine
dispute as to a material fact exists “will not preclude the grant
of summary judgment.”
Deering v. Lassen Cmty. Coll. Dist., No.
2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20,
2011)(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).
2010).
See also Moore v. Potter, 701 F. Supp. 2d 1171 (D. Or.
When the nonmoving party's claims are factually
implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
LVRC Holdings LLC
v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citing Blue Ridge
Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998)).
The substantive law governing a claim or a defense
determines whether a fact is material.
Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
If the
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
17- OPINION AND ORDER
Id.
DISCUSSION
As noted, Plaintiffs raise several federal constitutional
challenges to Defendants’ designation of an area that includes
Plaintiffs’ land as a rural reserve.
At the heart of Plaintiffs’
challenges is their claim that Defendants treated Plaintiffs’
land differently from similarly situated lands without a rational
basis for doing so.
Plaintiffs seek both damages pursuant to 42
U.S.C. § 1983 and declaratory and injunctive relief.
Defendants contend, among other things, that they are
entitled to summary judgment on the basis that this case is not
presently justiciable because the matter is not ripe for review.
Because the Court ultimately concludes this case is not ripe, the
Court need not address Defendants’ other contentions.
I.
Ripeness Standard
“Ripeness reflects constitutional considerations that
implicate ‘Article III limitations on judicial power’ as well as
‘prudential reasons for refusing to exercise jurisdiction.’”
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 670
n.2 (2010)(quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S.
43, 57 n.18 (1993)).
Thus, the “doctrine of ripeness . . .
contains ‘both a constitutional and prudential component.’”
Coons v. Lew, 762 F.3d 891, 897 (9th Cir. 2014)(quoting Portman
v. County of Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993)).
Prudential ripeness “has a ‘twofold aspect, requiring’” the
18- OPINION AND ORDER
court “‘to evaluate both the fitness of the issues for judicial
decision and the hardship to the parties of withholding court
consideration.’”
Golden v. Cal. Emergency Physicians Med. Grp.,
782 F.3d 1083, 1086 (9th Cir. 2015)(quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 149 (1967)).
“‘A claim is fit for decision if the issues raised are
primarily legal, do not require further factual development, and
the challenged action is final.’”
US West Commc’ns v. MFS
Intelenet, Inc., 193 F.3d 1112, 1118 (9th Cir. 1999)(quoting
Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624, 627 (9th
Cir. 1989)).
See also Wolfson v. Brammer, 616 F.3d 1045, 1060
(9th Cir. 2010).
In the context of a challenge to an
administrative action, courts “consider ‘whether the
administrative action is a definitive statement of an agency's
position; whether the action has a direct and immediate effect on
the complaining parties; whether the action has the status of
law; and whether the action requires immediate compliance with
its terms.’”
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1126 (9th
Cir. 2009)(quoting Ass’n of Am. Med. Colls. v. United States, 217
F.3d 770, 780 (9th Cir. 2000)).
“Courts have regularly declined
on prudential grounds to review challenges to recently
promulgated laws or regulations in favor of awaiting an actual
application of the new rule.”
Oklevueha Native Am. Church of
Hawaii, Inc. v. Holder, 676 F.3d 829, 837 (9th Cir. 2012).
19- OPINION AND ORDER
“‘To meet the hardship requirement, a litigant must show
that withholding review would result in direct and immediate
hardship and would entail more than possible financial loss.’”
Stormans, Inc., 586 F.3d at 1126 (quoting US West Commc’ns, 193
F.3d at 1118)).
When determining whether a litigant has shown
that withholding review would result in a direct hardship, the
court considers “whether the ‘regulation requires an immediate
and significant change in the plaintiffs' conduct of their
affairs with serious penalties attached to noncompliance.’”
Stormans, Inc., 586 F.3d at 1126 (quoting Ass’n of Am. Med.
Colls., 217 F.3d at 783).
II.
Analysis
Defendants contend this matter is not ripe in light of the
Oregon Court of Appeals’ partial reversal of LCDC’s
Acknowledgment Order and LCDC’s subsequent Remand Order.
Defendants specifically argue Plaintiffs are not challenging a
final action because under the Remand Order (1) Metro and
Multnomah County may (even if they are not required to)
reconsider designation of the area that includes Plaintiffs’
property and (2) on resubmittal of designations by Metro and
Multnomah County, the LCDC will review a resubmittal of the Metro
Region urban and rural reserves designations for acknowledgment
of compliance with the relevant statutes and LCDC rules.
Plaintiffs, in turn, contend this action is ripe because
20- OPINION AND ORDER
Plaintiffs specifically seek damages for past constitutional
violations under 42 U.S.C. § 1983, and Plaintiffs’ property
remains encumbered by the rural-reserve designation.
Moreover,
Plaintiffs contend they will suffer undue hardship in the event
that this Court declines to adjudicate Plaintiffs’ claims at this
time becase Plaintiffs continue to suffer harm by way of
diminished land values and limitations on development.
A.
Fitness for Judicial Decision
As noted, “[a] claim is fit for decision if the issues
raised are primarily legal, do not require further factual
development, and the challenged action is final.”
Commc’ns, 193 F.3d at 1118.
US West
See also Wolfson, 616 F.3d at 1060.
Here Plaintiffs’ claims for prospective relief are not “fit”
for judicial review at this time because pending municipal and
legislative actions create sufficient uncertainty in the urbanand rural-reserve designation process to render the challenged
action nonfinal and necessitate further factual development
before this Court can consider Plaintiffs’ constitutional
challenges.
Although Metro and Multnomah County are not required under
the Barkers Five decision and the LCDC’s subsequent Remand Order
to reconsider the rural-reserve designation of Area 9B (which
includes Plaintiffs’ property), the designation of Area 9B is,
nonetheless, not final because it has not yet been finally
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acknowledged by LCDC and it is not independent of the
designations of areas such as Area 9D, which Metro and Multnomah
County are required to reconsider under the Remand Order and
Barker’s Five.
As noted, Oregon Revised Statute § 195.145(4) provides the
total amount of urban reserves designated by Metro “must be
planned to accommodate population and employment growth for at
least 20 years, and not more than 30 years” after the 20-year UGB
planning period.
Thus, the designation of Area 9B is not final
or independent of other nonfinal designations of certain areas in
the Portland metropolitan area.
Instead, the designation of
urban and rural reserves throughout the Portland metropolitan
area requires a careful balancing of land-use interests on both a
county-by-county and a Metro-wide scale.
In other words, changes
made to designations in other parts of the metropolitan area
(perhaps including those areas of Multnomah County that require
further consideration) could trigger reconsideration of the
designation of Area 9B in order to meet the statutory and
regulatory requirements for the Metro-wide urban- and ruralreserves designations.
Moreover, since the remand there have
been actions in the Oregon State Legislature that, if passed,
would result in the re-designation of portions of Area 9B.
Although the most recent legislative session has now ended
apparently without the proposal or passage of any such
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legislation, the fact that such an amendment has been under
consideration underscores the dynamic nature of the urban- and
rural-reserve designation process and any decision-making
regarding Plaintiffs’ property.
Finally, a meaningful
opportunity remains for Plaintiffs to convince Multnomah County
and Metro to change the designation of Area 9B.
The Court cannot
conclude on this record, therefore, that the designation of Area
9B as a rural reserve is final and that Plaintiffs’ claims for
prospective relief are fit for judicial review.
Plaintiffs’ claims for damages fare no better.
Contrary to
Plaintiffs’ contentions, their land is not currently encumbered
by its rural-reserve designation.
Oregon Revised Statute
§ 197.175(2)(c) and (d) provide cities and counties shall only
make land-use decisions in compliance with the comprehensive plan
if that comprehensive plan has been acknowledged by LCDC.
Thus,
to the extent that Plaintiffs’ property remains encumbered by
land-use limitations, those limitations do not stem from the
rural-reserve designation at issue.
Although Plaintiffs
conceivably could have incurred damages while LCDC’s August 19,
2011, Acknowledgment Order was on appeal, there is not any
evidence in the record that during that period Plaintiffs
actually incurred or that they are presently incurring any
damages.
Finally, considering Plaintiffs’ claims for prospective
relief are substantively identical to Plaintiffs’ claims for
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damages, it would be improvident to proceed on Plaintiffs’ claims
for damages while Plaintiffs’ prospective claims are unfit for
judicial review.
In summary, in light of the possibility of material changes
at the municipal, state administrative, and legislative level
during the pendency of this action, the Court concludes on this
record that this action is not presently ripe for judicial
decision.
B.
Hardship to the Parties
Although there is not any evidence in this record from which
the Court can conclude Plaintiffs will suffer undue hardship as
the result of a finding that this case is not presently ripe for
judicial decision, Plaintiffs nevertheless contend they will
suffer undue hardship if the Court does not immediately
adjudicate their claims because their property is currently
encumbered and their land values are currently diminished by the
rural-reserve designation.
As noted, however, the rural-reserve designation of
Plaintiffs’ property is not in effect until LCDC issues its final
acknowledgment.
See Or. Rev. Stat. § 197.175(2)(c),(d).
In any event, Plaintiffs have not presented any evidence
from which this Court could conclude they would suffer undue
hardship even if the rural-reserve designation was currently in
effect.
Even if Plaintiffs’ ability to develop their land was
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currently limited or the land values currently diminished,
Plaintiffs have not submitted any evidence from which the Court
could conclude that Plaintiffs will thereby suffer undue
hardship.
For example, Plaintiffs have not stated they intend to
sell their land, to obtain a loan secured by a mortgage on their
land, or to develop their land in a way inconsistent with the
rural-reserve designation during the period between now and the
time that the designations will be finalized.
Moreover,
Plaintiffs can, if necessary, renew their claims when the
designations are final.
On this record, therefore, the Court concludes Plaintiffs
will not suffer undue hardship as a result of this Court’s
decision not to review the designation at issue until the urbanand rural-reserve designation process has been finalized.
Accordingly, the Court concludes this action is not ripe for
judicial review.
CONCLUSION
For these reasons, 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.
The Court GRANTS Plaintiffs leave to renew their claims in the
event that Plaintiffs’ claims remain viable after Defendants have
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rendered a final decision regarding the urban- and rural-reserve
designations in the Portland metropolitan area.
IT IS SO ORDERED.
DATED this 28th day of September, 2015.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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