Blumenkron et al v. Springville Investors, LLC et al

Filing 45

Opinion and Order: The Court GRANTS Plaintiff's Request for Judicial Notice 38 ; GRANTS in part and Denies in part Defendants' Joint Motion to Dismiss 28 as stated in the attached Opinion and Order. Signed on 03/01/2013 by Judge Anna J. Brown. See attached 25 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KATHERINE BLUMENKRON, an individual;
DAVID BLUMENKRON, an individual;
and SPRINGVILLE INVESTORS, LLC, a
limited liability company,

3:12-CV-351-BR
OPINION AND ORDER

Plaintiffs,
v.
BARTON EBERWEIN, HANLEY JENKINS,
TIM JOSI, GREG MACPHERSON, CHRISTINE
M. PELLETT, JOHN VANLANDINGHAM,
MARILYN WORRIX, and DAVID BRAGDON
all in their official capacities
as a member of the Land Conservation
and Development Commission; DAVID
BRAGDON, SHIRLEY CRADDICK,
CARLOTTA COLLETTE, CARL HOSTICKA,
KATHRYN HARRINGTON, REX BURKHOLDER,
and BARBARA ROBERTS, all in their
official capacities as Metro councilors;
and MULTNOMAH COUNTY,
Defendants.

1 - OPINION AND ORDER

CHRISTOPHER JAMES
CAMERON SORAN
The James Law Group
1501 S.W. Taylor Street, Ste 200
Portland, OR 97205
[phone]
Attorneys for Plaintiffs
ELLEN F. ROSENBLUM
Attorney General
DARSEE STALEY
Senior Assistant Attorney General
Oregon Department of Justice
1515 S.W. Fifth Ave., Suite 410
Portland, OR 97201
[phone]
Attorneys for Defendant Members of
the Land Conservation and Development
Commission (hereinafter referred to
collectively as State Defendants)
ALISON KEAN CAMPBELL
Metro Attorney
MICHELLE A. BELLIA
Senior Attorney
Office of Metro Attorney
600 N.E. Grand Ave.
Portland, OR 97232
[phone]
Attorneys for Defendant Metro
Councilors (hereinafter referred
to collectively as Metro Defendants)
JENNY MORF
Multnomah County Attorney
DAVID N. BLANKFELD
Multnomah County Attorney’s Office
501 S.E. Hawthorne Blvd., Ste 500
Portland, OR 97214
[phone]
Attorneys for Defendant Multnomah County

2 - OPINION AND ORDER

BROWN, Judge.
This matter comes before the Court on Defendants’ Joint
Motion (#28) to Dismiss or, in the Alternative, to Stay
(Abstention) and Plaintiffs’ Requests (#38, #43-1) that
the Court take judicial notice of the Land Conservation and
Development Commission’s (LCDC) Acknowledgment Compliance Order
dated August 14, 2012, and LCDC’s Staff Report respectively.
The Court heard oral argument on November 12, 2012.

During

the course of the argument it became clear that the parties had
not specifically addressed in the pending Motions whether
Plaintiffs had adequately pled a “class-of-one” equal-protection
claim under the Fourteenth Amendment to the United States
Constitution.

Accordingly, the Court directed the parties to

address that issue in supplemental memoranda.

On December 20,

2012, the Court took under advisement Defendants’ Joint Motion,
Plaintiffs’ Requests, and the issues raised in the original
Motions and addressed in the parties’ supplemental memoranda.
The Court GRANTS Plaintiffs’ Request for Judicial Notice and
takes judicial notice of LCDC’s Acknowledgment Compliance Order
dated August 12, 2012.
For the reasons explained herein, the Court GRANTS in part
and DENIES in part Defendants' Joint Motion to Dismiss as
follows:
1.

In the exercise of its discretion, the Court ABSTAINS

3 - OPINION AND ORDER

from litigating in this federal forum any of the state-law landuse issues relating to the designation of urban and rural
reserves set forth in Oregon Administrative Rule Chapter 660 and
Oregon Revised Statutes Chapters 195 and 197 that are asserted in
Plaintiffs' Second and Third Claims.

The Court, therefore,

DISMISSES those Claims without prejudice to Plaintiffs filing
those Claims in the appropriate state forum.
2.

To the extent that Plaintiffs are able to replead a

viable federal constitutional claim pursuant to 42 U.S.C. § 1983
under their First Claim for Relief consistent with this Opinion
and Order, the Court DECLINES TO ABSTAIN from litigating that
Claim.

The Court, therefore, DISMISSES that Claim without

prejudice and with leave to replead as specified herein.
3.

Because Plaintiffs' state-law claim under Article I,

Section 20, of the Oregon Constitution is based on the same facts
and analogous legal theory as Plaintiffs' to-be-repleaded federal
claim, the Court DECLINES TO ABSTAIN from litigating the state
constitutional claim over which it has supplemental jurisdiction
pursuant to 28 U.S.C. § 1367 and instead requires Plaintiffs to
plead that claim separately from Plaintiffs' § 1983 claim in
Plaintiffs' Third Amended Complaint as explained herein.

4 - OPINION AND ORDER

BACKGROUND
I.

The Parties.
Plaintiffs own land in Multnomah County.
State Defendants are members of the Land Conservation and

Development Commission (LCDC), which is charged with adopting
goals and guidelines for the purpose of “establish[ing] a
general, statewide, comprehensive land use framework.”

Lane

County v. Land Conserv. and Dev. Comm’n, 325 Or. 569, 573 (1997).
See also Or. Rev. Stat. § 197.225.
Metro Defendants are elected members of the Metropolitan
Regional Government (Metro), a government agency of the State of
Oregon surrounding the Portland metropolitan area.

Metro

Defendants are charged with designating land in the metropolitan
area as either “rural reserves” (i.e., land “outside urban growth
boundaries” that will provide “long term protection for
agriculture, forestry, or important natural landscape features”)
or “urban reserves” (i.e., land outside of an urban growth
boundary that will provide for “future [long-term] expansion” of
the urban growth boundary).

Or. Rev. Stat. §§ 195.137-145.

Defendant Multnomah County is charged with the task of
designating land within the County as “rural reserves” (i.e.,
land reserved to provide long-term protection for agriculture,
forestry, or important natural landscape features) to limit
urban development or “urban reserves” (i.e., land reserved

5 - OPINION AND ORDER

for the future expansion of the designated urban growth
boundary).
II.

Plaintiffs’ Claims.
Plaintiffs allege three claims for relief:
Plaintiffs’ First Claim is for declaratory relief under

42 U.S.C. § 1983 and Oregon law in which Plaintiffs seek a
declaratory judgment that Defendants violated Plaintiffs’ equalprotection rights under the Fourteenth Amendment to the United
States Constitution and Article I, Section 20, of the Oregon
Constitution when Defendants designated Plaintiffs’ land as rural
reserves rather than urban reserves for purposes of state landuse planning.
Plaintiffs’ Second Claim is for declaratory judgment seeking
to invalidate the “Entire Reserve Process” and certain Oregon
Administrative Rules.
Plaintiffs’ Third Claim is for declaratory judgment under
42 U.S.C. § 1983 and Oregon law for alleged equal-protection
violations in addition to allegations that Defendants violated
Oregon Revised Statutes Chapters 195 and 197 by the manner in
which they made their reserve designations.

DEFENDANTS’ JOINT MOTION TO DISMISS OR,
IN THE ALTERNATIVE, TO STAY (ABSTENTION)
I.

Federal Rule of Civil Procedure 12(b)(1) - Abstention.
Defendants move to dismiss or to stay this action based

6 - OPINION AND ORDER

on abstention principles under Brillhart v. Excess Ins. Co.,
316 U.S. 491, 495 (1942); Burford v. Sun Oil Co., 319 U.S. 315
(1943); Younger v. Harris, 401 U.S. 37 (1971); and/or Railroad
Comm. V. Pullman Co., 312 U.S. 496 (1986).
A.

Standards.
1.

Brillhart Abstention.

A federal court is not under any “compulsion to exercise
[] jurisdiction” if to do so would be “vexatious and economical”
because “another proceeding is pending in a state court
presenting the same issues, not governed by federal law, between
the same parties.

Gratuitous interference with the orderly and

comprehensive disposition of state court litigation should be
avoided.”

Brillhart, 316 U.S. at 495.
The factors to be considered when deciding whether

Brillhart abstention is appropriate are:
(1) whether a refusal to entertain the
request for declaratory relief avoids
needless decisions of state law by the
federal court; (2) whether the action
is a means of forum shopping; and
(3) whether dismissal of the claim for
declaratory relief would avoid duplicative
litigation.
Smith v. Lenches, 263 F.3d 972, 977 (9th Cir. 2001).
2.

Burford Abstention.

Burford abstention is an “extraordinary and narrow
exception to the duty of the District Court to adjudicate a
controversy properly before it.”
7 - OPINION AND ORDER

City of Tucson v. U.S. West

Communic’n, Inc., 284 F.3d 1128, 1133 (9th Cir. 2002)(citing
Colorado River, 424 U.S. at 813).
Under Burford a court may “decline to rule on an
essentially local issue arising out of a complicated state
regulatory scheme” if
the state has chosen to concentrate suits
challenging the actions of the agency involved
in a particular court; (2) the federal issues cannot be easily
separated from complex state law issues with respect to which
state courts might have special competence; and (3) federal review
might disrupt state efforts to establish a coherent policy.
United States v. Morros, 268 F.3d 695, 705 (9th Cir. 2001)(citing
Knudsen Corp. v. Nev. State Dairy Comm'n, 676 F.2d 374, 377 (9th
Cir. 1982)).
3.

Younger Abstention.

Younger abstention is appropriate when (1) state
proceedings are ongoing that implicate important state interests,
(2) the state proceedings provide an adequate opportunity to raise
federal questions, and (3) the federal proceeding would enjoin the
state-court proceeding or have the practical effect of doing so.
AmericsourceBergen Corp. v. Roden, 495 F.3d 1143, 1149 (9th Cir.
2007).
4.

Pullman Abstention.

Pullman abstention “is an extraordinary and narrow
exception to the duty of a [d]istrict [c]ourt to adjudicate a
controversy.”
2010).

Wolfson v. Brammer, 616 F.3d 1045, 1066 (9th Cir.

Pullman abstention is appropriate only when “(1) there are

8 - OPINION AND ORDER

sensitive issues of social policy” that the federal courts should
not address “unless no alternative to its adjudication

is open,

(2) constitutional adjudication could be avoided by a state
ruling, and (3) resolution of the state-law issue is uncertain.”
Id.
B.

Analysis.
Defendants argue the State of Oregon and local

governments spent years developing the information and creating
the record necessary for the approval of land-use designations.
According to Defendants, numerous landowners (including
Plaintiffs) participated in the public proceedings leading to the
ultimate approval of land-use designations and have the statutory
right to challenge the designations in the Oregon Court of
Appeals.

Accordingly, Defendants contend any declarations or

rulings from this federal court in this action would be
“needless.”
Defendants also note Oregon state courts have yet to
rule on the implementation of the complex process involved in the
land-use designations, and Defendants contend Plaintiffs have
engaged in forum shopping by filing this case in federal court to
gain a “tactical advantage” because if Plaintiffs obtain the
declaratory relief they seek in this case, that outcome “will play
a decisive role in the imminent state court case.”
Finally, Defendants maintain a direct appellate review

9 - OPINION AND ORDER

of the Commission’s land-use decision as to Plaintiffs’ land is
“imminent.”

Accordingly, if the Court allows this case to

proceed, it will lead to duplicative ongoing federal and state
litigation on the same subject matter.

By dismissing this case

under Brillhart, the Court will, according to Defendants, avoid
the duplicative and piece-meal litigation that is likely to create
a patchwork of decisions that will frustrate local efforts to
resolve these land-use issues.
Plaintiffs, in turn, argue their claims do not require a
needless interpretation of state land-use law because their claims
rest solely on the equal-protection guarantees provided under the
United States and Oregon Constitutions.

Moreover, Plaintiffs

assert litigation of their claims as pleaded in this Court is the
only effective means by which Plaintiffs are able to obtain the
discovery and examination of witnesses necessary for them to prove
their claims.

Finally, Plaintiffs contend this federal proceeding

will not overlap with the state land-use proceedings in the Oregon
Court of Appeals because the issues in the two courts are very
different.
Although the Court declines Defendants’ invitation to
speculate as to Plaintiffs’ reasons for challenging in this forum
the specific land-use designations made by state governmental
bodies as to Plaintiffs’ land, there appear to be sound reasons to
litigate Plaintiffs’ federal constitutional claims in federal

10 - OPINION AND ORDER

court but not to litigate the state land-use statutory scheme as a
whole.

If, as set forth below, Plaintiffs’ to-be-amended

Complaint includes specific allegations that are sufficient to
state actionable claims under 42 U.S.C. § 1983 based on violations
of Plaintiffs’ federal constitutional rights and to state separate
claims for violation of Plaintiffs’ constitutional rights under
Article I, Section 20, of the Oregon Constitution, a federal trial
court, with its discovery and fact-finding procedures including
direct- and cross-examination, is much better suited to undertake
that litigation than the state appellate court.

In this respect,

the Court agrees with Plaintiffs that their Fourteenth Amendment
equal-protection claim under 42 U.S.C. § 1983 and separate state
equal-protection claim under Article I, Section 20, of the Oregon
Constitution should remain in this forum.
On the other hand, the Court agrees with Defendants that
Plaintiffs’ state-law claims related to Defendants’ alleged
noncompliance with Oregon’s statutory and regulatory land-use
processes and those claims regarding the rural- and urban-reserve
designation processes in general are clearly intended under Oregon
law to be resolved by the Oregon Court of Appeals within the
procedural parameters available to that court.
On this record, therefore, the Court concludes it should
not abstain from litigating Plaintiffs’ First Claim for Relief
under 42 U.S.C. § 1983 based on the alleged violation of

11 - OPINION AND ORDER

Plaintiffs’ rights to equal protection under the Fourteenth
Amendment to the United States Constitution and Article I, Section
20, of the Oregon Constitution under Brillhart.
The Court, however, concludes it should not accept
jurisdiction over Plaintiffs’ Second Claim for Relief in which
Plaintiffs seek a declaratory judgment that Oregon’s regulatory
processes for making urban- and rural-reserve designations are
invalid because to do so would constitute the type of “gratuitous
interference with the orderly and comprehensive disposition of
state court litigation” that the Supreme Court in Brillhart urged
federal courts to avoid.

Accordingly, in the exercise of its

discretion, the Court abstains from addressing Plaintiffs’ Second
Claim for Relief in which Plaintiff seeks to invalidate the
“Entire Reserve Process” and

“[Oregon Administrative Rules]

Promulgated Thereunder.”
The Court also concludes it should not accept
jurisdiction over Plaintiffs’ Third Claim for Relief.

Although

Plaintiffs allege their Third Claim asserts a violation of their
equal-protection rights under the Fourteenth Amendment of the
United States Constitution and Article I, Section 20, of the
Oregon Constitution, the basis for those particular violations is,
in effect, Defendants’ alleged noncompliance with Oregon’s
statutory land-use processes as set forth in Oregon Revised
Statutes Chapters 195 and 197 to the extent that this Claim does

12 - OPINION AND ORDER

not duplicate the constitutional theories asserted in the First
Claim.

Resolution of Plaintiffs’ Third Claim, as with resolution

of Plaintiffs’ Second Claim, would require the Court to resolve
and, thereby, interfere in the orderly and comprehensive
disposition of ongoing state-court, land-use litigation.
C.

Conclusion.
The Court concludes it need not address Defendants’

additional arguments based on Burford, Younger, and Pullman
abstention because each of these principles favors abstention in
the same limited way the Court is already proceeding.

In any

event, the Court would also exercise its discretion under those
principles to abstain from addressing Plaintiffs’ Second and Third
Claims to the extent that they challenge Oregon’s land-use
statutory schemes as a whole based on noncompliance with and/or
violation of specific state land-use statutes and regulations.
II.

Federal Rule of Civil Procedure 12(b)(6) - Failure to State a
Class-of-One Equal-Protection Claim.
With respect to Defendants’ Motion to Dismiss Plaintiffs’

First Claim, the threshold issue is whether Plaintiffs’ Second
Amended Complaint (SAC) sufficiently alleges a class-of-one
federal equal-protection claim under 42 U.S.C. § 1983.

Defendants

contend Plaintiffs’ SAC falls short, and, therefore, this Court
should dismiss the action for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6).

13 - OPINION AND ORDER

A.

Standards.
1.

Motion to Dismiss.

To survive a motion to dismiss, a complaint must
contain sufficient factual matter accepted as true to “state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. 544, 545 (2007).

Bell Atlantic v.

A claim has facial plausi-

bility when the plaintiff pleads factual content that allows the
court to draw a reasonable inference that the defendant is liable
for the misconduct alleged.

Id. at 556.

“The plausibility

standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting

Twombly, 550 U.S. at 546).

When a complaint pleads facts that are

“merely consistent with” a defendant's liability, it “stops short
of the line between possibility and plausibility of entitlement to
relief.”

Iqbal, 556 U.S. at 678.
The pleading standard under Federal Rule of Civil

Procedure 8 “does not require ‘detailed factual allegations,’ but
it demands more than an unadorned, the-defendant-unlawfully harmed-me accusation.”
550 U.S. at 555).

Iqbal, 556 U.S. at 678 (quoting Twombly,

See also Fed. R. Civ. P. 8(a)(2).

“A pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’”
Twombly, 550 U.S. at 555).

14 - OPINION AND ORDER

Id. (citing

A complaint also does not suffice if

it tenders “naked assertion[s]” devoid of “further factual
enhancement.”
2.

Id. at 557.
Class-of-One Equal-Protection Claim.

“[A]n equal protection claim can in some

circumstances

be sustained even if [Plaintiffs have] not alleged class-based
discrimination, but instead claim [they have] been irrationally
singled out as a so-called ‘class of one.’”

Gerhart v. Lake

County, Montana, 637 F.3d 1013, 1021 (9th Cir. 2011)(quoting
Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601 (2008)(citing
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)(per
curiam)).

A class-of-one action may be maintained if a regulation

is “applied in a singular way to particular citizens.”

Engquist,

553 U.S. at 592 (emphasis added).
“To succeed on a ‘class of one’ claim,” Plaintiffs must
plead Defendants “(1) intentionally (2) treated [them] differently
than other similarly situated property owners, (3) without a
rational basis.”

Willowbrook, 528 U.S. at 564.

An equal-

protection claim based on a class-of-one is not appropriate when
the agency action involves discretionary decision-making and there
is not any “pattern of generally exercising the discretion in a
particular manner while treating one individual differently and
detrimentally.”

Towery v. Brewer, 672 F.3d 650, 660-61 (9th Cir.

2012)(emphasis in original).
Although a plaintiff must plead the defendant’s decision

15 - OPINION AND ORDER

was intentional, the plaintiff need not show that the defendants
were “motivated by subjective ill will.”
565.

Willowbrook, 528 U.S. at

See also Gerhart v. Lake County, Montana, 637 F.3d 1013,

1022 (9th Cir. 2011).

“A class of one plaintiff [however,] must

show that the discriminatory treatment ‘was intentionally directed
just at him, as opposed . . . to being an accident or a random
act.’”

North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486

(9th Cir. 2008)(quoting Jackson v. Burke, 256 F.3d 93, 96 (2d Cir.
2001)).
B.

Plaintiffs’ Second Amended Complaint.
Plaintiffs allege Multnomah County “predetermined that

it did not want any urban reserves designated within its borders.”
SAC at ¶ 21 (emphasis added).

Plaintiffs further allege

[t]hat predetermination: (1) precluded any
real, fact-based decision with respect to
analyzing the land available for the reserve
designations; (2) precluded any application
of the controlling requirements of ORS 197.040;
(3) precluded application of the statutory and
regulatory mandates to base the decisions regarding
reserves on consideration of the enumerated factors
and criteria, and (4) precluded the “Service District”
determination of urban reserve designation on any
rational or area-wide basis.
SAC at ¶ 21.

Plaintiffs also allege even though Multnomah County

and Metro found Plaintiffs’ property was otherwise suitable for
urban-reserve designation (i.e., an appropriate site for future
urban industrial/ employment purposes), Plaintiffs’ property was
designated as rural reserve for the next 50 years based solely on

16 - OPINION AND ORDER

Multnomah County’s predetermination that no additional urban
reserves would be designated within its boundaries.

Moreover,

Plaintiffs allege the predetermined designation of their property
as suitable for rural reserves was based on an illusory process
that did not comply with Oregon Revised Statutes §§ 195.145 and
197.040.
Although Plaintiffs acknowledge Oregon’s statutory
process requires challenges to urban/rural reserve designations to
be asserted in the Oregon Court of Appeals, Plaintiffs argue their
federal constitutional challenge is beyond the scope of the
land-use designation issues intended to be decided by that
court.

Thus, Plaintiffs seek a federal judicial declaration that,

among other things, Defendants’ designation of Plaintiffs’
property as rural reserves based on “political objectives” and
without regard for the applicable statutes violated Plaintiffs’
equal-protection rights under the United States Constitution and
the Oregon Constitution.
C.

The Urban/Rural Designation Process.
The urban/rural designation process is set forth in

Oregon Revised Statutes §§ 195.137-195.145 enacted in 2007.

Under

that process “[a] county and a metropolitan service district
[must] consider simultaneously the designation and establishment
of [rural reserves and urban reserves].”
(a) and (b).

Or. Rev. Stat. § 195.143

In the Portland area Metro (comprised of all land

17 - OPINION AND ORDER

within the boundaries of Multnomah, Washington, and Clackamas
Counties) designates urban reserves as to that land.

The three

Counties designate rural reserves as to land within their
respective boundaries.
LCDC is responsible for issuing final orders approving
or denying such designations.

LCDC’s final orders are appealable

to the Oregon Court of Appeals, which has the authority to review
a final order on the ground that it is “unconstitutional.”

Or.

Rev. Stat. § 197.651(10)(b).
D.

Analysis.
Metro, State, and Multnomah County Defendants contend

the designation of Plaintiffs’ land as rural reserves was
based on the exercise of their discretionary decision-making after
making a “vast array of subjective, individualized
assessments.”

See Towery, 672 F.3d at 660.

“[T]he government’s

decision to designate a property as an urban or rural reserve
involved a multi-year process, including a large study of
potential reserves and unprecedented cooperation among four
governments.”

Metro Defs.’ Mem. at 6.

The Court notes, however,

that Defendants’ factual arguments about the exercise of
discretionary decision-making are premature in the context of a
Rule 12(b)(6) motion to dismiss.
In any event, Defendants also argue Plaintiffs’
allegations in their SAC fail to state an adequate claim that they

18 - OPINION AND ORDER

were treated differently than other landowners with identical
property because
no two property owners are identical because
of the circumstances of the reserve process,
including the size of the reserve areas
studied by defendants and the variety of types
of property, together with the individualized
assessment of each designation area required
by state law. Plaintiffs thus cannot
establish that they are similarly situated to
other property owners.
Metro Defs.’ Mem. at 5.

Defendants further contend because none

of the properties are similarly situated for purposes of
establishing the viability of a class-of-one action, Plaintiffs’
allegations regarding different treatment as to their specific
properties are insufficient to state a class-of-one equalprotection claim against any of the Defendants.
In response Plaintiffs maintain “the state courts [are]
not the appropriate forum for their federal claims,” and
Plaintiffs do not have “a meaningful opportunity for discovery in
the underlying state process.”

They also contend access to

certain records under Oregon’s Public Records Law is not a
substitute for the meaningful discovery that is allowed under the
federal rules.
As noted, at this pleading stage the issue as to
Plaintiffs’ First Claim is whether Plaintiffs have adequately
pleaded in their SAC that they were not treated fairly compared to
similarly-situated landowners during the land-use designation

19 - OPINION AND ORDER

process.

Plaintiffs allege “Defendants’ failure to treat

Plaintiffs’ land . . . in a fair and equitable manner as compared
to similarly situated land violates the Equal Protection Clause of
the Fourteenth Amendment” and that there was not any “rational
basis for Defendants’ treatment of Plaintiffs or for the
classification Defendants have created or maintained.”

Perhaps

inconsistently, however, Plaintiffs also allege the following:
Multnomah County predetermined that it did not want
any urban reserves designated within its borders.
That predetermination: (1) preclude precluded any
real, fact-based decisions with respect to
analyzing the land available for reserve
designations; (2) precluded any application of the
controlling requirements of ORS 197.040; (3)
precluded application of the statutory and
regulatory mandates to base the decisions regarding
reserves on consideration of the enumerated factors
and criteria; and (4) precluded the “Service
District” determination of urban reserve
designation on any rational or area-wide basis.
Pls.’ SAC at ¶ 21 (emphasis added).
Multnomah County and Metro found that
Plaintiffs’ land was suitable for urban
reserve designation. However, as the result
of the preclusive effect of Multnomah County’s
actions, a rural reserve designation
was applied to Plaintiff’s land, a
designation that prohibits an urban reserve
designation or inclusion in the Urban Growth
Boundary for fifty years.
Id. at ¶ 23 (emphasis added).
Out of 28,615 acres adopted by Metro for
designation as urban reserve, only 857 acres
are located in Multnomah County.
Id. at ¶ 29 (emphasis added).

20 - OPINION AND ORDER

Thus, it does not appear that Plaintiffs are pointing to
other similarly-situated landowners who were treated more
favorably than Plaintiffs as in Willowbrook where the plaintiffs
alleged the defendants demanded a 33-foot sewer easement from them
but only a 15-foot easement from similarly-situated landowners.
In fact, it appears Plaintiffs here allege that virtually all
rural property owners in Multnomah County, Plaintiffs included,
were treated the same.

The Court is not aware of, and Plaintiffs

have not identified, any authority that suggests a class-of-one,
equal-protection claim may proceed without a factual basis of
disparate rather than similar treatment.

The Court, therefore,

concludes Plaintiffs do not allege facts in their SAC that show
they were singled out for different treatment compared to
similarly-situated landowners in Multnomah County; i.e.,
Plaintiffs do not allege facts that show Defendants’ allegedly
discriminatory treatment was based on a decision that “was
intentionally directed just at [Plaintiffs].”

See North Pacifica

LLC, 526 F.3d at 486.
Accordingly, the Court grants Defendants’ Motion to
Dismiss Plaintiffs’ First Claim for failure to state a claim.
E.

Leave to Replead.
Although the Court concludes on this record that

Plaintiffs’ SAC does not allege sufficient facts to state a claim

21 - OPINION AND ORDER

under 42 U.S.C. § 1983, the Court also concludes Plaintiffs should
have leave to replead their § 1983 claim to attempt to assert an
adequate basis for their class-of-one, equal-protection claim
under the Fourteenth Amendment or to plead any other federal
constitutional violation they contend arises from these facts.
The Court notes § 1983 applies only to violations of
“rights, privileges, or immunities secured by the Constitution or
laws of the United States.”

The only federal right that

Plaintiffs name in their SAC, however, arises under “the Equal
Protection Clause of the Fourteenth Amendment.”

Thus, Plaintiffs’

allegations regarding the Oregon Constitution are not actionable
under § 1983 and cannot be included in a repleaded § 1983 claim.
Although Plaintiffs do not presently state a class-of-one equalprotection claim under the Fourteenth Amendment in their SAC, it
is unclear whether the Court has properly understood their
intended federal claim; whether that is the only form of federal
equal-protection claim Plaintiffs are attempting to pursue; or
whether Plaintiffs may be able to replead by alleging a different,
specific federal violation based on the assertion that Defendants
denied Plaintiffs’ property any consideration to be eligible for
an urban-reserve designation because of allegedly illegal
predeterminations.
In any event, because of this lack of clarity and the
fact that the class-of-one issues were first raised by the Court

22 - OPINION AND ORDER

in oral argument, the Court concludes it should exercise its
discretion pursuant to Federal Rule of Civil Procedure 15 to
permit Plaintiffs an opportunity to file a Third Amended Complaint
if they wish to replead their § 1983 claim consistent with this
Opinion and Order and in a manner that more clearly and
specifically alleges facts that show how particular “rights,
privileges, or immunities secured by the Constitution or laws of
the United States” were allegedly violated by Defendants in the
land-use process.
Because Plaintiffs’ equal-protection claims under Article
I, Section 20, of the Oregon Constitution are based on essentially
the same allegations made by Plaintiffs in their federal § 1983
equal-protection claim and the Oregon Supreme Court has recognized
that a “‘class of one’ can support [an Article I, Section 20,]
equal protection claim if [a] plaintiff alleges treatment
different from others and no rational basis for difference in
treatment,” In re Conduct of Gatti, 330 Or. 517, 534 (2000), the
Court concludes Plaintiffs also should have the opportunity to
include in any Third Amended Complaint a class-of-one, equalprotection claim under Article I, Section 20, of the Oregon
Constitution as long as it is pleaded as a separate claim for
relief distinct from the § 1983 federal claim.
Accordingly, the Court GRANTS Defendants’ Motion to
Dismiss to the extent that it is based on Plaintiffs’ failure to

23 - OPINION AND ORDER

state a class-of-one, equal-protection claim under Federal Rule of
Civil Procedure 12(b)(6) and DISMISSES without prejudice
Plaintiff’s First Claim for Relief under 42 U.S.C. § 1983 with
leave to replead consistent with this Opinion and Order.

CONCLUSION
For these reasons, the Court GRANTS in part and DENIES in
part Defendants' Motion as follows:
The Court GRANTS Plaintiffs’ Request for Judicial Notice
and takes judicial notice of LCDC’s Acknowledgment Compliance
Order dated August 12, 2012.
The Court ABSTAINS from litigating in this federal forum
any of the state land-use law issues relating to the designation
of urban and rural reserves set forth in Oregon Administrative
Rule Chapter 660 and Oregon Revised Statute Chapters 195 and 197
that are asserted in Plaintiffs' Second and Third Claims and,
therefore, DISMISSES those claims without prejudice to Plaintiffs
filing them in the appropriate state forum.
To the extent that Plaintiffs are able to replead a
viable federal constitutional claim pursuant to 42 U.S.C. § 1983
under their First Claim for Relief consistent with this Opinion
and Order, the Court DECLINES TO ABSTAIN from litigating that
claim, and, therefore, the Court DISMISSES that Claim without
prejudice and with leave to replead as specified herein no later
24 - OPINION AND ORDER

than April 6, 2013.
Because Plaintiffs' claim under Article I, Section 20,
of the Oregon Constitution is based on the same facts
and analogous legal theory as Plaintiffs' federal claim that
may be repleaded, the Court DECLINES TO ABSTAIN from litigating
the state constitutional claim over which it has supplemental
jurisdiction pursuant to 28 U.S.C. § 1367, but requires Plaintiffs
to plead that claim separately from Plaintiffs' § 1983 claim if
Plaintiffs file a Third Amended Complaint.
IT IS SO ORDERED.
DATED this 1st day of March, 2013.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

25 - OPINION AND ORDER