Exit 282A Development Company, LLC et al v. Worrix et al

Filing 170

ORDER: The Court GRANTS the Clackamas County Defendants Motion 136 for Summary Judgment, the State Defendants Motion 149 for Judgment on the Pleadings (converted into a Motion for Summary Judgment), and the Metro Defendants Motion [150 ] for Judgment on the Pleadings (converted into a Motion for Summary Judgment). The Court, therefore, DISMISSES this matter without prejudice and with leave to re-file 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. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

EXIT 282A DEVELOPMENT COMPANY,
LLC, and LFGC, LLC,

3:12-cv-00939-BR
OPINION AND ORDER

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; PAUL SAVAS, in
his official capacity as a
member of the Clackamas County
Board of Commissioners; JIM
BERNARD, in his official capacity
as a member of the Clackamas
County Board of Commissioners;
CLACKAMAS COUNTY; JERRY LIDZ, in
1 - OPINION AND ORDER

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; SHERMAN LAMB, in his
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; 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; BOB STACEY, in
his official capacity as a Metro
Councilor; JOHN LUDLOW, in his
official capacity as a member of
the Clackamas County Board of
Commissioners; and MARTHA SCHRADER,
in her official capacity as a
member of the Clackamas County
Board of Commissioners,
Defendants.

STEPHEN F. ENGLISH
KRISTINA J. HOLM
TERESA G. JACOBS
Perkins Coie, LLP
1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128
[phone]
Attorneys for Plaintiffs

2 - OPINION AND ORDER

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
[phone]
Attorneys for Defendants Barton Eberwein, Greg
MacPherson, Jerry Lidz, Catherine Morrow, Sherman Lamb,
Robin McArthur, and Melissa Cribbins
MATTHEW J. KALMANSON
KAREN M. O’KASEY
Hart Wagner, LLP
1000 S.W. Broadway, Suite 2000
Portland, OR 97205
[phone]
MICHELLE A. BELLIA
Office of Metro Attorney
600 N.E. Grand Avenue
Portland, OR 97232
[phone]
Attorneys for Defendants Tom Hughes, Shirley Craddick,
Carlotta Collette, Kathryn Harrington, Craig Dirksen,
Sam Chase, and Bob Stacey
STEPHEN LEWIS MADKOUR
ALEXANDER GORDON
Clackamas County Counsel
2051 Kaen Road, 4th Floor
Oregon City, OR 97045
[phone]
Attorneys for Defendants Paul Savas, Jim Bernard,
Clackamas County, John Ludlow, and Martha Schrader

BROWN, Judge.
This matter comes before the Court on the following Motions:
1.

Motion (#136) for Summary Judgment filed by Defendants

3 - OPINION AND ORDER

Paul Savas, Jim Bernard, John Ludlow, Martha Schrader, and
Clackamas County (collectively referred to herein as Clackamas
County Defendants);
2.

Motion (#149) for Judgment on the Pleadings filed by

Defendants Melissa Cribbins, Barton Eberwein, Sherman Lamb, Jerry
Lidz, Greg MacPherson, and Catherine Morrow (collectively
referred to herein as State Defendants); and
3.

Motion (#150) for Judgment on the Pleadings filed by

Defendants Sam Chase, Carlotta Collette, Shirley Craddick, Craig
Dirksen, Kathryn Harrington, Tom Hughes, and Bob Stacey
(collectively referred to herein as Metro Defendants).
As noted, State Defendants and Metro Defendants each filed a
Motion (#149, #150) for Judgment on the Pleadings.

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 (#149) for Judgment on the Pleadings and
Metro Defendants’ Motion (#150) for Judgment on the Pleadings
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 Clackamas
County Defendants’ Motion for Summary Judgment, the State
4 - OPINION AND ORDER

Defendants’ Motion for Summary Judgment, and the Metro
Defendants’ Motion for Summary Judgment and DISMISSES this matter
without prejudice.
The Court notes Plaintiffs conceded in their response to the
State Defendants’ Motion that they do not have any ripe claims
against the State Defendants because there is not presently any
final action from the Land Conservation and Development
Commission (LCDC) that affects Plaintiffs’ property.
Accordingly, on May 11, 2015, Plaintiffs and State Defendants
filed a Joint Stipulation (#158) to Entry of Judgment of
Dismissal of State Defendants to which Clackamas County
Defendants objected.

Because the Court grants Defendants’

respective Motions for Summary Judgment, however, the Court
concludes the Joint Stipulation entered into by Plaintiffs and
State Defendants is moot.

BACKGROUND
The following facts are undisputed:
Plaintiffs raise equal-protection challenges under the
United States Constitution and the Oregon Constitution to
Defendants’ designation as a “rural reserve” for long-term,
land-use planning purposes of an area in Clackamas County that
includes Plaintiffs’ land.
Metro is a metropolitan service district responsible for,
5 - OPINION AND ORDER

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
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.

As noted, Plaintiffs bring federal and

Oregon constitutional challenges to the designation by Metro and
the Counties of an area that includes Plaintiffs’ land as a
“rural reserve.”
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).

6 - OPINION AND ORDER

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
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.

7 - OPINION AND ORDER

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
and the Counties can designate.

In 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).
8 - OPINION AND ORDER

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.

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

9 - OPINION AND ORDER

(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
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-

10- OPINION AND ORDER

0060(4), Metro and the Counties may “deem that Foundation
Agricultural Lands or Important Agricultural Lands1 within three
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

1

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).
11- OPINION AND ORDER

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
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
12- OPINION AND ORDER

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
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).

13- OPINION AND ORDER

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
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

14- OPINION AND ORDER

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
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 Clackamas
County to reconsider designations other than Areas 4A, 4B, 4C,
and 4D, it did not preclude Metro and Clackamas County from doing
so.

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 Area 4J, a portion of Clackamas

County that has been designated as a rural reserve under the
May 13, 2011, urban- and rural-reserve submission to LCDC.
15- OPINION AND ORDER

Area

4J covers an area south and east of Wilsonville.

Plaintiffs’

property is south of the City of Wilsonville and the Willamette
River.
Both LCDC and the Oregon Court of Appeals affirmed the
designation of Area 4J as a rural reserve over Plaintiffs’
objection.

Accordingly, although Metro and Clackamas County may

still reconsider their designation of Area 4J, both LCDC and the
Oregon Court of Appeals have determined the designation of Area
4J in isolation is lawful.
Since remand Plaintiffs and Clackamas County have discussed
proposing legislation that would allow Metro and Clackamas County
to revise urban- and rural-reserves designations to add
additional land suitable for development.

On June 3, 2015, the

Clackamas County Board of Commissioners (the members of which are
named as Defendants in this action) voted to draft an amendment
that would allow for revision of some urban- and rural-reserve
designations and would redesignate the area that includes
Plaintiffs’ property as “undesignated,” which would, in effect,
remove from Plaintiffs’ property the rule-based restrictions
applicable to rural reserves.

STANDARDS
Summary judgment is appropriate when there is not a “genuine
dispute as to any material fact and the movant is entitled to

16- OPINION AND ORDER

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)).

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)).
17- OPINION AND ORDER

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.

Id.

DISCUSSION
As noted, Plaintiffs raise equal-protection challenges to
Defendants’ designation of an area that includes Plaintiffs’ land
as a rural reserve.

At the heart of Plaintiffs’ challenge is

their claim that Defendants treated Plaintiffs’ land differently
from similarly situated lands without a rational basis for doing
so.
18- OPINION AND ORDER

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
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.’”
19- OPINION AND ORDER

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).
“‘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

20- OPINION AND ORDER

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
Clackamas 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
Clackamas 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
Plaintiffs’ property is not in an area that Metro and Clackamas
County are required to reconsider under the Oregon Court of
Appeals’ decision in Barkers Five or the Remand Order, and,
therefore, Metro and Clackamas County’s designation regarding
Plaintiffs’ property is sufficiently final to render this matter
fit for judicial decision.

21- OPINION AND ORDER

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 the matter is not fit for judicial review at this time
because pending municipal and legislative actions create
sufficient uncertainty in the urban- and rural-reserve
designation process to render the challenged action nonfinal and
necessitate further factual development before this Court can
consider Plaintiffs’ constitutional challenges.
Although Plaintiffs are correct that Metro and Clackamas
County are not required under the Barkers Five decision and the
LCDC’s subsequent Remand Order to reconsider the rural-reserve
designation of the area that includes Plaintiffs’ property,
Plaintiffs’ contention that the actions of Metro and Clackamas
County are final with respect to Plaintiffs’ property rests on
the incorrect premise that the designation of Area 4J (in which
Plaintiffs’ property is located) is independent of the
designations of areas such as Areas 4A though 4D that Metro and
Clackamas County are required to reconsider under the Remand
Order.
As noted, Oregon Revised Statute § 195.145(4) provides the
total amount of urban reserves designated by Metro “must be

22- OPINION AND ORDER

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, contrary to Plaintiffs’ contention that

the designation of Area 4J is final and independent of other
nonfinal designations of certain areas in the Portland
metropolitan area, 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 Clackamas County that require further consideration)
could trigger reconsideration of the designation of Area 4J in
order to meet the statutory and regulatory requirements for the
Metro-wide urban- and rural-reserves designations.

Moreover,

since the remand Plaintiffs and Clackamas County have discussed
proposing legislative action that would result in the
redesignation of Area 4J and/or authorize an interim review of
urban- and rural-reserve designations.

Although the most recent

legislative session has now ended without the proposal or passage
of any such legislation, the parties’ genuine discussions
regarding policy changes that could result in a different
designation for Area 4J and Plaintiffs’ property underscores the
dynamic nature of the urban- and rural-reserve designation
process and any decision-making regarding Plaintiffs’ property.

23- OPINION AND ORDER

The Court cannot conclude on this record, therefore, that the
designation of Area 4J as a rural reserve is final.
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 their property
is currently encumbered by Oregon Administrative Rule 660-0270070(3), which provides
[c]ounties that designate rural reserves under this
division shall not amend comprehensive plan provisions
or land use regulations to allow uses that were not
allowed, or smaller lots or parcels than were allowed,
at the time of designation as rural reserves unless and
until the reserves are re-designated, consistent with
this division, as land other than rural reserves,
except as specified in sections (4) through (6) of this
rule.
Plaintiffs specifically assert Oregon Administrative Rule 660027-0070(3) and the rural-reserve designation of Area 4J (even in
its non-final status) prevent Plaintiffs from applying for a
“Goal 2 exception” that would allow Plaintiffs to build a second
eighteen-hole golf course on their property.

24- OPINION AND ORDER

Plaintiffs submit

the Declaration of Chris Maletis (#169-1) in which Maletis states
he and his brother were considering adding a second eighteen-hole
golf course “[i]n the late 1990s,” but in 2003 a regional public
representative informed Maletis that the property was best suited
for use as industrial land and “[t]he idea of an expansion of the
golf course onto the adjacent property was placed on hold pending
potential future Urban Growth Boundary expansion proposals.”
The Metro Defendants disagree with Plaintiff’s
interpretation of the present state of the rural-reserve
designations and Oregon Administrative Rule 660-027-0070(3) and
contend “state land use law does not require plaintiffs to seek a
goal exception to pursue expansion of their golf course onto
adjacent EFU-zoned property.”

The Court does not need to resolve

this question of state land-use law, however, because Plaintiffs
have not made any showing that they intend to pursue the
development of the second golf course in the near future.

The

mere fact that Plaintiffs considered such development more than a
decade ago does not demonstrate any hardship that will befall
Plaintiffs if the Court withholds review of their claims
regarding the rural-reserve designation of their land until the
designation process is 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 urban-

25- OPINION AND ORDER

and 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 Clackamas County
Defendants’ Motion (#136) for Summary Judgment, the State
Defendants’ Motion (#149) for Judgment on the Pleadings
(converted into a Motion for Summary Judgment), and the Metro
Defendants’ Motion (#150) for Judgment on the Pleadings
(converted into a Motion for Summary Judgment).

The Court,

therefore, DISMISSES this matter without prejudice and with leave
to re-file 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.
IT IS SO ORDERED.
DATED this 28th day of September, 2015.

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

26- OPINION AND ORDER