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

Filing 53

Opinion and Order: The Court DENIES Defendants Joint Motion 16 to Dismiss and DECLINES TO ABSTAIN from litigating Plaintiffs claim under 42 U.S.C. § 1983 and Article I, Section 20, of the Oregon Constitution. The Court DIRECTS Plaint iffs to file an amended complaint no later than April 6, 2013. The Court DENIES Clackamas County Defendants Motion 14 to Dismiss. The Court will set a Rule 16 Conference shortly to determine the case-management deadlines. Signed on 03/01/2013 by Judge Anna J. Brown. See attached 22 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

EXIT 282A DEVELOPMENT COMPANY,
LLC, a limited liability company,
and LFGC, LLC, a limited liability
company,
Plaintiffs,
v.
MARILYN WORRIX, BARTON EBERWEIN,
HANLEY JENKINS, TIM JOSI, GREG
MACPHERSON, CHRISTINE M. PELLETT,
and JOHN VANLANDINGHAM, all in
their official capacities as
members of the Land Conservation
and Development Commission;
TOM HUGHES, SHIRLEY CRADDICK,
CARLOTTA COLLETTE, CARL HOSTICKA,
KATHRYN HARRINGTON, REX BURKHOLDER,
BARBARA ROBERTS, ROBERT LIBERTY,
and ROD PARK, all in their official
capacities as Metro councilors;
CLACKAMAS COUNTY; and CHARLOTTE
LEHAN, LYNN PETERSON, ANN LININGER,
PAUL SAVAS, JIM BERNARD, and BOB
AUSTIN, all in their official
capacities as members of the
Clackamas Board of Commissioners,
Defendants.
STEPHEN F. ENGLISH
1

- OPINION AND ORDER

3:12-CV-939-BR
OPINION AND ORDER

KRISTINA J. HOLM
TERESA G. JACOBS
Perkins Coie LLP
1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128
[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 Land Conservation and
Development Commission Members (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)
STEPHEN L. MADKOUR
ALEXANDER GORDON
Clackamas County Counsel
2051 Kaen Road
Oregon City, OR 97045
[phone]
Attorneys for Defendants Clackamas County and
Members of the Clackamas County Board
of Commissioners (hereinafter referred to
collectively as Clackamas County Defendants)

2

- OPINION AND ORDER

BROWN, Judge.
This matter comes before the Court on all Defendants’
(including Clackamas County Defendants) Joint Motion (#16) to
Dismiss or, in the Alternative, to Stay (Abstention) and
Clackamas County Defendants’ separate Motion (#14) to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1), the
Principles of Abstention, and Federal Rule of Civil Procedure
12(b)(6).
Plaintiffs filed Objections (#28, #33) to Clackamas County
Defendants’ Reply to Plaintiffs’ Motion to Dismiss on the grounds
that the Reply for the first time raised the issue whether
Plaintiffs had adequately pled an equal-protection claim based on
a class-of-one theory.
At oral argument on November 8, 2012, the Court agreed with
Plaintiffs that in the Motions before the Court, Plaintiffs had
not had an opportunity to address Clackamas County’s belated
argument that Plaintiffs had not 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 after
which, on December 20, 2012, the Court took under advisement
Defendants’ Joint Motion and the issues raised in the parties’
Supplemental Memoranda.

3

- OPINION AND ORDER

For the reasons set forth herein, the Court DENIES
Defendants’ Joint Motion (#16) to Dismiss and DECLINES TO ABSTAIN
from litigating Plaintiffs’ claim under 42 U.S.C. § 1983 and
Article I, Section 20, of the Oregon Constitution.

The Court

DIRECTS Plaintiffs to file an amended complaint no later than
April 6, 2013, that separately states their two claims under 42
U.S.C. § 1983 and Article I, Section 20, of the Oregon
Constitution.
The Court DENIES Clackamas County Defendants’ Motion (#14)
to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1), the Principles
of Abstention, and Fed. R. Civ. P. 12(b)(6).

BACKGROUND
I.

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

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

Lane County v.

Land Conserv. and Dev. Com’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.
4

- OPINION AND ORDER

Metro is

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. §§ 195.137-45.

Clackamas County Defendants include Clackamas County and
members of the Clackamas County Board of Commissioners who are
charged with the task of designating land within Clackamas 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 for the future expansion of the
designated urban growth boundary).
II.

Id.

Plaintiffs’ Claim.
Plaintiffs assert a single combined claim under 42 U.S.C.

§ 1983 and Oregon law alleging Defendants violated Plaintiffs’
rights to equal-protection under the Fourteenth Amendment to the
United States Constitution and Article I, Section 20, of the
Oregon Constitution respectively when Defendants designated
Plaintiffs’ land as rural reserve rather than urban reserve for
purposes of state land-use planning.

5

- OPINION AND ORDER

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

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

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’n v. Pullman Co., 312 U.S. 496 (1986).
In Blumenkron v. Eberwein, 3:12-CV-351-BR, another pending
case involving similar land-use issues, the Court granted in part
and denied in part a similar abstention motion concluding that
the Court should exercise its discretion and abstain from
litigating in this forum the claims in which the plaintiffs
alleged the defendants violated Oregon Administrative Rule
Chapter 660 and Oregon Revised Statute Chapters 195 and 197 when
the defendants designated the plaintiffs’ land as rural rather
than urban reserves.

Plaintiffs in this case, however, have not

asserted claims under Oregon Administrative Rule Chapter 660 or
Oregon Revised Statutes Chapters 195 and 197, and, therefore, the
Court’s abstention analysis in Blumenkron does not apply in this
matter.
Nevertheless, the Court in Blumenkron also concluded it
should not abstain from exercising jurisdiction over the same
type of federal and state constitutional equal-protection claims

6

- OPINION AND ORDER

that Plaintiffs seek to litigate in this case.

For all of the

same reasons explained in Blumenkron, the Court declines to
exercise its discretion to abstain from litigating Plaintiffs’
federal and state equal-protection claims asserted in this case
because those claims do not raise the same abstention concerns
that the Court found in Blumenkron.

Moreover, as noted in

Blumenkron, the federal trial court is far better suited than the
Oregon Court of Appeals to litigate Plaintiffs’ constitutional
claims in the first instance.
II.

Federal Rule of Civil Procedure 12(b)(6) - Failure to State
a Claim.
Defendants’ Rule 12(b)(6) Motion challenges whether

Plaintiffs’ Complaint sufficiently alleges a class-of-one federal
equal-protection claim under either 42 U.S.C. § 1983 or Article
I, Section 20, of the Oregon Constitution.

Defendants contend

Plaintiffs’ Complaint 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).
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).

7

- OPINION AND ORDER

Bell Atlantic v.

A claim has facial

plausibility 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-unlawfullyharmed-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).

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.

Under 42 U.S.C. § 1982, “an equal protection claim can
in some circumstances be sustained even if [the plaintiffs have]

8

- OPINION AND ORDER

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 v. Or. Dep’t of Agric., 553 U.S. 591, 592

(2008)(emphasis added).
The Oregon Supreme Court also has recognized 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),
“To succeed on a ‘class of one’ claim,” the plaintiff
must plead the defendants “(1) intentionally (2) treated [the
plaintiff] differently than other similarly situated property
owners, (3) without a rational basis.”
at 564.

See Willowbrook, 528 U.S.

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).
9

- OPINION AND ORDER

Although a plaintiff must plead the defendant’s
decision was intentional, the plaintiff need not show that the
defendants were “motivated by subjective ill will.”
528 U.S. at 565.

Willowbrook,

See also Gerhart v. Lake County, Montana, 637

F.3d 1013, 1022 (9th Cir. 2011).

“A class of one plaintiff 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’ Complaint.
Plaintiffs allege Defendants, who are participants in

the regional land-use designation process, intentionally and
irrationally treated Plaintiffs differently from other similarlysituated landowners when they designated Plaintiffs’ land as
rural reserves rather than urban reserves for purposes of
future land-use planning “based on a personal and political
predetermination . . . effectively . . . preclud[ing] the
opportunity [for Plaintiffs] to seek approval for potential
urban development for a minimum of the next fifty years.”
at ¶ 1.

Compl.

Plaintiffs also allege Defendants “intentionally and

irrationally treated Plaintiffs differently from other similarlysituated landowners by singling [them] out” for “personal and
10 - OPINION AND ORDER

political” reasons when they designated Plaintiffs’ property as
rural reserves.

As a result, Plaintiffs allege their property

will remain outside of the Urban Growth Boundary (UGB) for at
least fifty years.

Compl. at ¶ 1.

In particular, Plaintiffs allege Clackamas County staff,
the Port of Portland, Clackamas County Business Alliance, and
Business Oregon (an Oregon state agency) each opined during the
urban/rural reserves designation process that Plaintiffs’
property is suitable for an urban-reserve designation (i.e., an
appropriate site for future urban industrial/employment
purposes).

Compl. at ¶¶ 28-30.

According to Plaintiffs,

Defendants disregarded those opinions and the requirements of
state law when they “predetermined” that all land in Clackamas
County south of the Willamette River, including Plaintiffs’
property, should, nevertheless, be designated as rural reserves.
Compl. at ¶ 35.

Plaintiffs assert that designation of their

property, which prevents any future urban development, was both
intentional and irrational and made for improper reasons and
motives.

Compl. at ¶ 52.
Although Plaintiffs acknowledge Oregon law generally

requires challenges to urban/rural reserve designations to be
made in the Oregon Court of Appeals, Plaintiffs argue their
federal and state constitutional challenges are outside of the
scope of the land-use designation issues intended to be decided

11 - OPINION AND ORDER

by that Court.

Thus, Plaintiffs seek a declaration from this

Court that Defendants’ “policy, practice, and agreements” in
making urban/rural reserve designations based on political and
other improper considerations without regard for or adherence to
applicable statutes violate Plaintiffs’ rights under the Equal
Protection Clause of the Fourteenth Amendment and Article I,
Section 20, of 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].”
Stat. § 195.143 (a) and (b).

Or. Rev.

In the Portland area, Metro

(comprising Multnomah, Washington, and Clackamas Counties)
designates urban reserves as to that land.

The three Counties,

however, separately 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 authority to review,
inter alia, the constitutionality of the final order.
Stat. § 197.651(10)(b).

12 - OPINION AND ORDER

Or. Rev.

D.

Analysis.
Clackamas County, Metro, and State Defendants contend

the designation of Plaintiffs’ land as rural reserve 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.”
Defs.’ Mem. at 6.

Metro

Defendants contend the fact that they were

at all times exercising their discretionary decision-making
authority precludes Plaintiffs from asserting a Fourteenth
Amendment equal-protection claim.
602-03.

See Engquist, 533 U.S. at

If such discretionary decision-making is a bar to

Plaintiffs’ claims, that is a fact-based defense that cannot be
resolved on Defendants’ present Motion.
Defendants also argue Plaintiffs are unable to prove
that they were treated differently than any other landowner with
identical property in light of the fact that
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.

13 - OPINION AND ORDER

Metro Defs.’ Mem. at 5.

Because Plaintiffs allegedly cannot

prove any properties are similarly situated for purposes of
establishing the viability of a class-of-one action, Defendants
contend Plaintiffs’ allegations as to their specific property are
inadequate to state a class-of-one equal-protection claim against
any of the Defendants.
Clackamas County Defendants also assert all but one of
the properties identified by Plaintiffs in their Complaint as
being similar to Plaintiffs’ property but allegedly treated
differently by Defendants are located in either Washington County
or Multnomah County.

Moreover, the only property in Clackamas

County that is identified by Plaintiffs as being similarly
situated to their own property is “not similarly situated in all
relevant respects to Plaintiffs’ property for comparison
purposes.”

Accordingly, Clackamas County Defendants contend

Plaintiffs’ allegations regarding different treatment as to
specific properties are insufficient to state a class-of-one
equal-protection claim against any of the Defendants.
Again, Defendants’ argument turns on factual assertions
that contradict Plaintiffs’ allegations and cannot be resolved
short of summary judgment.
In any event, Plaintiffs emphasize Defendants’ arguments
only make clear why Plaintiffs should be allowed some discovery
to enable them to present evidence that “the asserted rational

14 - OPINION AND ORDER

basis for [Defendants’] action was merely a pretext for different
treatment” because such evidence is obviously relevant to their
class-of-one claim.

See Engquist v. Or. Dep't of Agric., 478

F.3d 985, 993 (9th Cir. 2007).
Based on Olech, we have applied the
class-of-one theory in the regulatory
land-use context to forbid government actions
that are arbitrary, irrational, or malicious.
See Squaw Valley, 375 F.3d at 944–48; see
also Valley Outdoor, Inc. v. City of
Riverside, 446 F.3d 948, 955 (9th Cir.2006)
(applying class-of-one theory to city's
denial of billboard permits). In Squaw
Valley, the plaintiffs, who operated a ski
resort, claimed that two employees working
for the state water quality authority
subjected them to selective and over-zealous
regulatory oversight. 375 F.3d at 938. We
applied rational basis scrutiny to review the
acts of the government regulators. Id. at
944. We held that acts that are malicious,
irrational, or plainly arbitrary do not have
a rational basis. Id. In addition, we held
that in an equal protection claim based on
selective enforcement of the law, a plaintiff
can show that a defendant's alleged rational
basis for his acts is a pretext for an
impermissible motive.
Id. (emphasis added).
Plaintiffs maintain they have pled “sufficient factual
matter” to state a class-of-one equal-protection claim that is
“plausible on its face” and, therefore, that meets Iqbal’s
standards.

Plaintiffs also contend if they are not permitted to

proceed in this case, they will be denied the opportunity in the
available state proceedings before the Oregon Court of Appeals to

15 - OPINION AND ORDER

engage in the discovery necessary to obtain evidence sufficient
to establish Defendants’ motivations for the challenged land-use
decision and thereby to prove Plaintiffs’ § 1983 constitutional
claim or Plaintiffs’ state constitutional claim.

The Court

agrees.
As noted, Plaintiffs allege in their Complaint that
their property was not treated in the same manner as similarlysituated properties during the course of the land-use designation
process, thereby implicating land-use decisions made by each of
the three groups of Defendants named in this case.

Plaintiffs

allege the land-use decisions made by each of the governing
bodies that treated Plaintiffs’ land differently from other
similarly-situated land was intentional, irrational, and made
with willful or reckless indifference to Plaintiffs and those
decisions have caused Plaintiffs to incur damages and loss.

The

Court concludes these allegations are sufficient to state a
class-of-one equal-protection claim under 42 U.S.C. § 1983 and
Article I, Section 20, of the Oregon Constitution.
The Court, however, also concludes Plaintiffs’ federal
equal-protection claim under 42 U.S.C. § 1983 should be stated
separately from their state equal-protection claim under Article
I, Section 20, of the Oregon Constitution, which, as noted, have
been pled together.

Claims under 42 U.S.C. § 1983 apply only to

violations of “rights, privileges, and immunities secured by the

16 - OPINION AND ORDER

Constitution or laws of the United States.”

Plaintiffs’ Oregon

constitutional claim, therefore, does not arise under § 1983 and
must be pleaded separately from Plaintiffs’ federal claim.
Accordingly, the Court DENIES Defendants’ Motion to
Dismiss Plaintiffs’ Complaint for failure to state a claim and
DIRECTS Plaintiffs to file an amended complaint that separately
alleges their federal and state equal-protection claims.

CLACKAMAS COUNTY DEFENDANTS’ MOTION TO DISMISS PURSUANT TO
FEDERAL RULE OF CIVIL PROCEDURE 12(B)(1), PRINCIPLES OF
ABSTENTION, AND FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6)
Clackamas County Defendants move separately to dismiss
Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(1)
on the grounds that there is no case or controversy under
Article III of the United States Constitution because (1)
Plaintiffs’ claims are not ripe and (2) Plaintiffs lack
standing.

In addition, Clackamas County Defendants move the

Court to dismiss this case based on Younger abstention
principles.
I.

Ripeness.
Clackamas County Defendants assert this Court lacks subject-

matter jurisdiction because the decision to designate Plaintiffs’
property as rural reserve is not final and, therefore, is not
ripe for this Court’s review.

17 - OPINION AND ORDER

A.

Standards.
Whether a plaintiff has exhausted remedies for purposes

of pursuing an action under 42 U.S.C. § 1983 depends upon whether
the initial decision maker has arrived
at a definitive position on the issue
that inflicts an actual, concrete
injury; the exhaustion requirement
generally refers to administrative and
judicial procedures by which an injured
party may seek review of an adverse
decision and obtain a remedy if the
decision is found to be unlawful or
otherwise inappropriate.
Williamson Reg’l Planning Comm’n v. Hamilton Bank of Johnson
City, 473 U.S. 172, 193 (1985).
“The finality requirement [] applies to decisions about
how a takings plaintiff's particular parcel may be used, see,
e.g., Williamson County, supra, at 191, 105 S. Ct., at 3119, and
it responds to the high degree of discretion characteristically
possessed by land use boards in softening the strictures of the
general regulations they administer, see, e.g., MacDonald, supra,
at 350, 106 S. Ct., at 2566.”

Suitum v. Tahoe Reg’l Planning

Agency, 520 U.S. 725, 726 (1997).
B.

Analysis.
In Suitum the Supreme Court held the plaintiff’s claim

“satisfied the demand for finality” because it was “undisputed
that the agency ha[d] finally determined that her land lies
entirely within a zone in which development is not permitted.”

18 - OPINION AND ORDER

520 U.S. at 726.
Plaintiffs contend LCDC’s decision is final for purposes
of this action because “[b]y operation of law the LCDC’s final
decision locks Plaintiffs’ property in a rural reserve
designation for at least the next fifty years.”
10.

Pls.’ Mem. at

“No development plan or variance to allow urban uses, or

even more intense rural uses on Plaintiffs’ property . . . can be
accepted or approved by Clackamas County.”

Pls.’ Mem. at 10.

Plaintiffs also assert “there is no requirement that a plaintiff
exhaust state judicial remedies” based on a claim of “deprivation
on constitutional rights.”

Pls.’ Mem. at 10.

See also Flying J

Inc. v. City of New Haven, 549 F.3d 538, 543 (7th Cir. 2008).
Flying J, however, the court qualified its holding:
This circuit has read Williamson County
broadly, “rejecting attempts to label
‘takings' claims as ‘equal protection’
claims and thus requiring ‘ripeness.’”
Forseth v. Village of Sussex, 199 F.3d
363, 368 (7th Cir. 2000). This circuit
also applies the ripeness requirements
to most claims labeled as “substantive
due process” or “procedural due process”
claims. Id. However, courts in this
circuit have recognized an exception for
“bona fide equal protection claims,” and
held that, in some circumstances, land
use cases raising equal protection
issues are not subject to Williamson
County 's ripeness requirements. Id. at
370. Litigants making these claims,
however, must place them into one of two
categories, pleading either: “(1) the
malicious conduct of a government agent,
in other words, conduct that evidences a
spiteful effort to ‘get’ him for reasons
19 - OPINION AND ORDER

In

unrelated to any legitimate state
objective; . . . .
Id. at 543 (emphasis added).
Here Plaintiffs’ equal-protection claim focuses on the
alleged wrongful motives of those decision-makers who were
responsible for designating Plaintiffs’ land as rural reserves
and who, in the process of doing so, allegedly disregarded
contrary opinions of business entities such as the Port of
Portland, the Clackamas County Business Alliance, and Business
Oregon.

The Court concludes those allegations are sufficient to

satisfy the requirement described in Flying J that the claim must
be based on some form of “malicious conduct” by the governmentagency defendants, and, therefore, the Court concludes
Plaintiffs’ federal and state constitutional claims are ripe for
resolution.
II.

Standing.
Clackamas County Defendants also assert Plaintiffs lack

standing to bring this action because Plaintiffs “have failed to
demonstrate that they have suffered an injury in fact” that is
capable of being “redress[ed] by a favorable decision in this
Court.”
A.

Standards.
A plaintiff must have standing to bring an action

in federal court.

Standing “requires ‘an injury in fact’;

20 - OPINION AND ORDER

‘a causal connection between the injury and the conduct
complained of’; and a conclusion that it is ‘likely,’ as
opposed to merely ‘speculative,’ that the injury will be
‘redressed by a favorable decision.’”

Arizona Christian Sch.

Tuition Org’n v. Winn, 131 S. Ct. 1426, 1437 (2011)(quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)
(emphasis in original)).
B.

Analysis.
The foundation for Clackamas County Defendants’ argument

is that Plaintiffs’ class-of-one equal-protection claim is not
capable of being addressed by this Court.

As explained above,

however, the Court has concluded Plaintiffs have adequately pled
a class-of-one equal-protection claim.
Accordingly, the Court DENIES Clackamas County
Defendants’

Motion (#14) to Dismiss Pursuant to Fed. R. Civ. P.

12(b)(6).
III. Younger Abstention.
For the reasons set forth above as to all Defendants’ Joint
Motion to Dismiss, the Court concludes Plaintiffs’ claims are not
barred under the principles of Younger abstention.

CONCLUSION
For these reasons, the Court DENIES Defendants’ Joint Motion
(#16) to Dismiss and DECLINES TO ABSTAIN from litigating
21 - OPINION AND ORDER

Plaintiffs’ claim under 42 U.S.C. § 1983 and Article I, Section
20, of the Oregon Constitution.

The Court DIRECTS Plaintiffs to

file an amended complaint no later than April 6, 2013, that
separately states their two claims under 42 U.S.C. § 1983 and
Article I, Section 20, of the Oregon Constitution.
The Court DENIES Clackamas County Defendants’ Motion (#14)
to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1), the Principles
of Abstention, and Fed. R. Civ. P. 12(b)(6).
The Court will set a Rule 16 Conference shortly to determine
the case-management deadlines for this matter.

Counsel should

begin their conferral on a jointly proposed case-management
schedule so that it may be filed at least two days before the
Rule 16 Conference.
IT IS SO ORDERED.
DATED this 1st day of March, 2013.

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

22 - OPINION AND ORDER