Emmert v. Clackamas County

Filing 97

Opinion & Order. Defendant's Motion to Dismiss 94 is granted. Signed on 5/9/2017 by Judge Marco A. Hernandez. (sss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TERRY W. EMMERT, sometimes
doing business under the name EMMERT
DEVELOPMENT COMPANY,

No. 3:13-cv-01317-HZ

Plaintiff,
v.
CLACKAMAS COUNTY,
Defendant.

Hollis K. McMilan
HOLLIS K. MCMILAN, P.C.
1650 N.W. Naito Pkwy., Suite 125
Portland, Oregon 97209
Kenneth C. Bauman
1406 S.W. Upland Drive
Portland, Oregon 97221
Attorneys for Plaintiff
///
1 - OPINION & ORDER

OPINION & ORDER

Stephen L. Madkour
CLACKAMAS COUNTY COUNSEL
Alexander Gordon
ASSISTANT CLACKAMAS COUNTY COUNSEL
Office of Clackamas County Counsel
2051 Kaen Road
Oregon City, Oregon 97045-1819
Attorneys for Defendant
HERNANDEZ, District Judge:
In his Fourth Amended Complaint (FAC), Plaintiff brings federal and state claims of
inverse condemnation. Defendant moves to dismiss, arguing that Plaintiff fails to state a claim. I
agree with Defendant that Plaintiff's 42 U.S.C. § 1983 federal inverse condemnation claim must
be dismissed. Further, I dismiss it with prejudice because Plaintiff is unable to articulate a theory
of relief entitling him to proceed. I also decline to exercise supplemental jurisdiction over
Plaintiff's remaining state law claim.
The background of the dispute and a thorough discussion of the procedural history are
recited in detail in my January 12, 2017 Opinion which partially adopted Judge You's October
17, 2016 Findings & Recommendation recommending that Defendant's motion to dismiss the
Third Amended Complaint (TAC) be granted in part and denied in part. Jan. 12, 2017 Op. &
Ord. 2-12, ECF 87. The January 12, 2017 Opinion dismissed Plaintiff's breach of contract and
fraud claims with prejudice. Further, the federal inverse condemnation claim was dismissed for
failure to sufficiently allege a custom or practice under Monell v. Department of Social Services,
436 U.S. 658 (1978). Id. at 13-18, 20-21. I also concluded that the portion of the inverse
condemnations claims which appeared to arise under an "as-applied regulatory takings" theory
were not ripe as alleged and failed to assert a plausible claim for relief because of the lack of
2 - OPINION & ORDER

allegations implicating Defendant's particular regulatory action. Id. at 18-30. Despite Plaintiff
already having had several opportunities to plead viable claims, and despite previous
admonitions about giving Plaintiff only one more chance to amend, I allowed Plaintiff an
additional attempt because no prior decision had discussed some of the reasons for my
conclusions.
In response, Plaintiff filed the FAC which Defendant argues fails to cure the defects
explained in the January 12, 2017 Opinion. Defendant's motion1 primarily targets the Monell
allegations and the ripeness allegations. Because I agree with Defendant on those issues, I do not
discuss other arguments Defendant raises.
I. Standards
A motion to dismiss for failure to state a claim may be granted only when there is no
cognizable legal theory to support the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual
allegations, the court must accept all material facts alleged in the complaint as true and construe
them in the light most favorable to the non-moving party. Wilson v. Hewlett–Packard Co., 668
1

The briefing on the motion reveals a spat between the parties as to whether Defendant's
motion was timely filed. The FAC was filed on January 31, 2017. Defendant's response to the
FAC was due with fourteen days of service. Fed. R. Civ. P. 15(a)(3). The motion was filed
February 16, 2017, two days after Plaintiff asserts it was due. The motion was timely filed under
this Court's then-applicable Local Rule of Civil Procedure 6 which extended a deadline by three
days to allow for service, even when service was by electronic means. Although the December 1,
2016 amendments to the Federal Rules of Civil Procedure eliminated the extra three days when
service is by electronic means, see Federal Rules of Civil Procedure 5(b) and 6(d), this Court's
Local Rules were not amended to conform to the new Federal Rules until March 1, 2017. Thus,
at the time Defendant filed its motion, this Court still granted the extra three days for filing for
service, even when service was by electronic means.
3 - OPINION & ORDER

F.3d 1136, 1140 (9th Cir. 2012). However, the court need not accept unsupported conclusory
allegations as truthful. Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992).
A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the
"grounds" of his "entitlement to relief" with nothing "more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action[.]" Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in the complaint are true (even if
doubtful in fact)[.]" Id.(citations and footnote omitted). 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[,]" meaning "when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
II. Monell
As I explained in the January 12, 2017 Opinion, municipalities cannot be liable under §
1983 for the unconstitutional acts of their employees based on a respondeat superior theory. Id.
at 14 (citing Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011)). Instead,
municipal liability for an alleged constitutional violation by an employee is allowed only "when
an employee is acting pursuant to an expressly adopted official policy, longstanding practice or
custom, or as a final policymaker." Thomas v. Cty. of Riverside, 763 F.3d 1167, 1170 (9th Cir.
2014) (citing Monell, 436 U.S. at 694), amended, 776 F.3d 1020 (9th Cir. 2015). If relying on
the "final policymaker" prong of liability, the final policymaker must have actually committed
the alleged constitutional violation, or must have either delegated that final policymaking
4 - OPINION & ORDER

authority to, or ratified the decision of, a subordinate. Ulrich v. City & Cty. of S.F., 308 F.3d
968, 985 (9th Cir. 2002); Gregory v. City of Newberg, No. 3:15-cv-00473-BR, 2016 WL
1069053, at *3 (D. Or. Mar. 17, 2016).
In every pleading thus far, Plaintiff's theory of relief for the inverse condemnation claims
has been grounded in Plaintiff's assertion that Defendant devised a strategy or conspiracy to
suppress property values and inhibit property sales of several pieces of property owned by
Plaintiff ("the Properties"), within the Sunrise Corridor Project's proposed right-of-way. Judge
Stewart and Judge You rejected Defendant's argument that Plaintiff had failed to plead facts
establishing Monell municipal liability. They concluded that Plaintiff had sufficiently alleged
conduct consistent with a strategy and not just relied on facts showing isolated decision-making.
As I explained in my January 12, 2017 Opinion, that conclusion was not necessarily
incorrect. But, it did not go far enough. Jan. 12, 2017 Op. & Ord. 13-14. The existence of a
strategy or conspiracy alone does not establish Monell liability. Id. Instead, the alleged strategy
or conspiracy must be based on a custom or longstanding practice. The determinative question is
whether there were allegations of a custom or longstanding practice underlying the alleged
conspiracy or strategy. I concluded that there were no such allegations in the TAC and thus, the
federal inverse condemnation claim had to be dismissed. Id. at 13-18 (concluding that Plaintiff's
TAC alleged a single strategy, scheme, or conspiracy to depress property values and inhibit
property sales along the Sunrise Corridor Project route and was at best a single plan targeting a
single individual; accordingly, the pleading did not allege a widespread, pervasive custom
required under the custom/practice prong of Monell liability).
Judge You had found, and I agreed, that Plaintiff had not asserted municipal liability
5 - OPINION & ORDER

based on the adoption of an express policy. Id. at 13. I further noted that there were no
allegations in the TAC that any unnamed final policymaker was involved in the strategy, scheme,
or conspiracy and no allegations from which final policymaking responsibility could be inferred.
Id. at 18 n.8. There were also no facts asserted as to any type of ratification theory. Therefore,
none of the recognized avenues of Monell liability were pleaded and the claim could not survive.
In the FAC, Plaintiff repeats many allegations that were in the TAC supporting the same
basic theory of the inverse condemnation claims. For example, in the TAC, Plaintiff alleged that
"Defendant, in collaboration with other governmental bodies," planned the Sunrise Corridor
Project. TAC ¶ 5, ECF 63. That allegation is repeated verbatim in the FAC. FAC ¶ 5, ECF 93.
In the TAC, Plaintiff then alleged that:
Defendant, acting through the Development, Disposition and Acquisition
department ("DDA"), engaged in a scheme to acquire certain Properties for public
use in constructing the Sunrise Corridor Project as cheaply as possible even before
the planning of the specific route was completed.
TAC ¶ 5. The identical allegation is in the FAC. FAC ¶ 5.
The TAC then alleged that
[t]his scheme included official actions including formulation of strategies, and
pursuit of policies such as instructing the planning department staff to suppress
property values by discouraging buyers from purchasing the Properties and/or
thwarting Plaintiff's attempt to use the Properties in a manner that would produce
any economic benefit.
TAC ¶ 5. The FAC changes this allegation slightly. Plaintiff still starts with "[t]his scheme
included official actions," but instead of following with "including formulation of strategies," the
FAC states "such as formulation of stratgies[.]" FAC ¶ 5. Then, while the TAC alleged the
"pursuit of policies" including instructing the planning staff to suppress property values, the FAC

6 - OPINION & ORDER

reads:
This scheme included official actions such as formulation of strategies, and, upon
information and belief, the adoption and pursuit of a formal government policy,
articulated by Planner Mike McAllister to Principal Planner Ron Weinman,
directing the planning department staff to suppress the value of certain properties,
including the Properties, by discouraging buyers from purchasing the Properties,
and/or thwarting owners' [sic] including Plaintiff, from attempting to use
properties, including the Properties in a manner that would produce any economic
benefit.
FAC ¶ 5 (emphasis added to highlight changes from TAC). It is clear that just as in the earlier
pleadings, the underlying theory of a strategy, scheme, or conspiracy by Defendant to suppress
property values in the Sunrise Corridor Project right-of-way is the cornerstone of Plaintiff's
current inverse condemnation claims. Some changes from the TAC to the FAC broaden the
allegation to include that Plaintiff's properties were not the sole target of the scheme. The more
notable change is the addition of the "upon information and belief" allegation that the strategy,
scheme, or conspiracy included the adoption of a formal governmental policy, articulated by one
planner to a principal planner, directing planning department staff to suppress property values.
Although neither the TAC nor the prior pleadings had expressly alleged a custom and
practice theory of Monell liability, no other theory was apparent from the face of the pleadings.
For example, in her May 12, 2015 Findings & Recommendation, Judge Stewart construed the
First Amended Complaint's allegations that Defendant had a "strategy to keep property values
down and inhibit sales of property" as an allegation of a "coordinated custom" in support of the
custom and practice theory. May 12, 2015 Findings & Rec. 14-15 (D. Or. May 12, 2015), ECF
39, adopted July 1, 2015, ECF 44. Judge Stewart noted the absence of any allegation of an
express policy. Id. And, she rejected Plaintiff's argument made opposing Defendant's motion to

7 - OPINION & ORDER

dismiss the First Amended Complaint, that Monell liability was also based on the ratification and
decisions of an official policymaker. Id. at 15 (stating "neither theory is apparent from the face
of the allegations"). Similarly, Judge You also found that there were no allegations of an express
policy but the allegations in the TAC supported a custom or practice theory of Monell liability.
Oct. 17, 2016 Findings & Rec. 7-8 (D. Or. Oct. 17, 2016), ECF 83, adopted in part Jan. 12, 2017,
ECF 87.
As I explained in my January 12, 2017 Opinion, the allegations failed to establish that the
strategy, scheme, or conspiracy instructing planning department staff to suppress property values
was attributable to a widespread, established practice or custom of Defendant's. Thus, to the
extent these allegations in the TAC are repeated in the FAC, they similarly fail to sufficiently
allege Monell liability. Moreover, the attempt to broaden the allegations to contend that the
strategy, scheme, or conspiracy was aimed at properties owned by others does not cure the
insufficiency. The allegations still refer to a single plan related to the Sunrise Corridor Project.
Although the strategy now allegedly involved additional properties, the strategy, scheme, or
conpsiracy is still the equivalent of a single incident because it is a "single coordinated plan."
Jan. 12, 2017 Op. & Ord. 17.
The addition of allegations referring to the pursuit and adoption of a "formal government
policy" further reinforces the lack of widespread custom or practice allegations. Because the
allegations refer to a single act (the adoption and pursuit of a formal government policy
articulated by McAllister to Weinman), they are inconsistent with a widespread custom and
practice theory. And, later in the FAC, Plaintiff refers to "Defendant's formal policy to keep
property values down and inhibit development and/or sales of property within the Sunrise
8 - OPINION & ORDER

Corridor's various proposed right-of-ways[.]" FAC ¶ 26. The single "formal policy" allegation is
not compatible with a widespread custom or practice theory. Thus, I consider the allegations in
the FAC as alleging Monell liability based on an express policy or perhaps a final policymaker
theory.
Defendant argues that the allegations fail to establish municipal liability because they are
conclusory and do not meet Iqbal/Twombly pleading standards. Plaintiff contends that he need
allege only that individual conduct conformed to an official policy, custom, or practice. Pl. Resp.
6, ECF 95. Although I rejected this argument in my January 12, 2017 Opinion, Plaintiff raises it
again. Jan. 12, 2017 Op. & Ord. 13 n.5.
Plaintiff provides the following quote which Plaintiff attributes to a 2016 Opinion by
Judge Brown:
"In AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636-37 (9th Cir.
2012), the Ninth Circuit addressed the level of pleading sufficient to state a claim
under Monell in light of the Supreme Court's decisions in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The court
noted: In the past, our cases have not required parties to prove much detail at the
pleading stage regarding such a policy or custom. "In this circuit, a claim of
municipal liability under § 1983 is sufficient to withstand a motion to dismiss
even if the claim is based on nothing more than a bare allegation that the
individual officers' conduct conformed to official policy, custom, or practice."
Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007) (citation and internal
quotation marks omitted)."
Pl.'s Resp. 6 (quoting Gregory v. City of Newberg, 2016 U.S. Dist. LEXIS 34500, at *9).
There are problems with the quote as well as with Plaintiff's reliance on it for the
proposition that to survive a motion to dismiss, Plaintiff need allege nothing more than an
individual's conduct conformed to official policy, custom, or practice. First, the language after

9 - OPINION & ORDER

"[t]he court noted" is from the Ninth Circuit's opinion in Hernandez, which Judge Brown quoted.
It is not original to Judge Brown's Opinion.
Second, and more importantly, Plaintiff fails to include the entire Hernandez passage
quoted by Judge Brown which actually rejects the proposition Plaintiff argues for here. The
entire passage from Judge Brown's Gregory opinion, properly quoted, provides:
In AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636-37 (9th
Cir. 2012), the Ninth Circuit addressed the level of pleading sufficient to state a
claim under Monell in light of the Supreme Court's decisions in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The
court noted:
In the past, our cases have not required parties to prove much detail
at the pleading stage regarding such a policy or custom. "In this
circuit, a claim of municipal liability under § 1983 is sufficient to
withstand a motion to dismiss even if the claim is based on nothing
more than a bare allegation that the individual officers' conduct
conformed to official policy, custom, or practice." [Whitaker v.
Garcetti, 486 F.3d 572, 581 (9th Cir. 2007)] (citation and internal
quotation marks omitted)."
***
[After Twombly and Iqbal, however,] . . . "to be entitled to the
presumption of truth, allegations in a complaint . . . may not simply
recite the elements of a cause of action, but must contain sufficient
allegations of underlying facts to give fair notice and to enable the
opposing party to defend itself effectively. Second, the factual
allegations that are taken as true must plausibly suggest an
entitlement to relief, such that it is not unfair to require the
opposing party to be subjected to the expense of discovery and
continued litigation."
Hernandez, 666 F.3d at 637 (quoting Starr v. Baca, 652 F.3d 1202 (9th Cir.
2011)).
Gregory, No. 3:15-cv-00473-BR, 2016 WL 1069053, at *4 (D. Or. Mar. 17, 2016) (ellipses and

10 - OPINION & ORDER

brackets in Gregory).
In Gregory, Judge Brown went on to hold that while the allegations of Monell liability,
which included that the chief of police was a final policymaker for the city and knowingly
ratified and approved of the use of excessive force, or alternatively, that the city had a custom,
practice, or unwritten policy of excessive force, may have satisfied the pre-Twombly/Iqbal
standard, they did not include sufficient facts to satisfy the current post-Twombly/Iqbal standard
as recognized in Hernandez. Id. Clearly, Plaintiff's contention that to survive a motion to
dismiss directed to municipal liability allegations, Plaintiff need allege only that individual
conduct conformed to official policy, custom, or practice, is not supported by Gregory or Ninth
Circuit cases and it must be rejected.
I agree with Defendant that the allegations of municipal liability in the FAC are
insufficient under Iqbal/Twombly. The relevant allegations are that the scheme, strategy, or
conspiracy to suppress property values included (1) "official actions such as formulation of
strategies"; (2) the adoption and pursuit of a formal government policy, articulated by McAllister
to Weinman, directing planning staff to suppress property values; and (3) a "formal policy to
keep property values down and inhibit development and/or sales of property" which included but
was not limited to "enacting regulations" and "undertaking activities" that discouraged property
owners from making economically viable use of their properties by minimizing or prohibiting
development or discouraging potential buyers. FAC ¶¶ 5, 26. The first allegation is conclusory
without specific facts such as what official actions were taken by whom or when, how that led to
the formulation of strategies, and what exact strategies were formulated. The third allegation is
again conclusory by referring to a generic "formal policy" without stating when it was adopted or
11 - OPINION & ORDER

by what body or person.
The second allegation comes closer but is still incomplete. McAllister's articulation of a
policy to Weinman does not specify anything more than the "articulation" of a policy. The fact
that one planner "articulates" a policy to a principal planner does not, without more, establish
municipal liability. Additionally, there is no allegation, even a conclusory one, that either
McAllister or Weinman is a final policymaker for planning and development policy. And, there
are no allegations as to when this articulated policy was adopted or how it became "formal."
As Defendant notes, the allegations lack any assertion that the claimed official or formal
policy was a policy statement, an ordinance, a regulation, or a decision adopted and promulgated
by the officers of Clackamas County. Further, "[t]here are no allegations that any Clackamas
County official, let alone one with final policymaking authority as to the acquisition of property
for public use by Clackamas County" was involved in adopting the policy or in carrying out the
complained of conduct. Def. Reply 20, ECF 96. Plaintiff's assertions do not contain sufficient
allegations of underlying facts to support a municipal liability claim.
III. Ripeness
The previous decisions in this case suggested that Plaintiff's inverse condemnation claims
contained separate theories of relief. In seeking to dismiss Plaintiff's First Amended Complaint,
Defendant argued that the inverse condemnation claims must be dismissed because, among other
reasons, there was no allegation that the takings were for public use. In response, Plaintiff
contended that his inverse condemnation claims stated a claim under the condemnation
cloud/blight theory and alternatively, as a regulatory takings claim under Penn Central
Transportation Co. v. City of New York, 438 U.S. 104 (1978).
12 - OPINION & ORDER

In her May 12, 2015 Findings & Recommendation, Judge Stewart discussed the claims
and Defendant's argument. May 12, 2015 Findings & Rec. 16-19. She described the
condemnation cloud/blight theory as well as Plaintiff's alternative theory of a "general regulatory
takings pursuant to Penn Cent.[.]" Id. at 17. She concluded that under either theory, Plaintiff was
required to plead that any taking was for the benefit of public use. Id. at 17-18. She dismissed
the inverse condemnation claims because Plaintiff did not allege that Defendant's "strategy to
keep property values down and inhibit sales of his Properties within the Sunrise Corridor's
proposed right-of-way was done with the intention to use those Properties for public use." Id. at
18. She allowed Plaintiff leave to amend.
Plaintiff added the public use allegations in his Second Amended Complaint (SAC).
SAC ¶ 5 (Defendant "engaged in a scheme to acquire certain Properties for public use in
constructing the Sunrise Corridor Project as cheaply as possible[.]"), ECF 48. This allegation has
remained in subsequent amended pleadings. Prop. Third Am. Compl. ¶ 5, ECF 51-1; TAC ¶ 5;
FAC ¶ 5. In her December 29, 2015 Findings & Recommendation discussing Defendant's
motion to dismiss the Second Amended Complaint and Plaintiff's Motion for Leave to File a
Third Amended Complaint, Judge Stewart rejected Defendant's argument that the newly added
"public use" allegations were insufficient, except she noted that the claims required clarification
because four properties for which no there was no "public use" allegation still were part of the
inverse condemnation claims. Dec. 29, 2015 Findings & Rec. 8-11, 21 (D. Or. Dec. 29, 2015),
ECF 60, adopted Feb. 4, 2016, ECF 62. The public use allegation has not since been an issue.
In discussing the inverse condemnation claims, Judge Stewart also explained that as to
two of the properties, the Con Battin Road Property and the Sunnyside Road Property, the
13 - OPINION & ORDER

inverse condemnation claims arose under a different theory than the condemnation cloud/blight
theory underlying the claims as to the Properties impacted by the Sunrise Corridor Project. Id. at
14. The claims based on the Con Battin Road and Sunnyside Road Properties were
straightforward "as-applied regulatory takings claims[.]" Id. Judge Stewart went so far as to
suggest that the claims for these two pieces of property should be alleged as separate takings
claims, independent of any claim based on the properties impacted by the Sunrise Corridor
Project. Id. at 21.
The distinction between these theories of relief continued in Judge You's October 17,
2016 Findings & Recommendation where she separately discussed arguments directed at the
Properties underlying the condemnation cloud/blight theory from the arguments directed at the
Properties underlying the regulatory takings part of the claims. Oct. 17, 2016 Findings & Rec. 79 (condemnation cloud/blight), 10-13 (regulatory takings). My January 12, 2017 Opinion also
perpetuated the distinction between the two theories. Jan. 12, 2017 Op. & Ord. 13-18
(condemnation cloud/blight), 18-30 (regulatory takings).
Perhaps because of the lack of precision in the pleadings, or the fact that four different
Judges in this Court have issued decisions, the decisions have created the impression that the
claim involving the Properties impacted by the Sunrise Corridor Project was to be treated
differently than the claim involving the two pieces of property which clearly alleged an asapplied regulatory taking by virtue of completed governmental action depriving these properties
of any feasible access. However, while the theories underlying these two groups of properties are
different, it is clear that both are properly classified as regulatory takings claims.
The condemnation cloud/blight theory of inverse condemnation claims arose in response
14 - OPINION & ORDER

to the previous "general rule" which provided that "absent a statute imposing liability on a
condemnor, damages suffered by a landowner as a result of condemnation proceedings that were
protracted or subsequently abandoned were . . . damages for which no legal recourse exists."
Thompson v. Tualatin Hills Park & Recreation Dist., 496 F. Supp. 530, 539 (D. Or. 1980), aff'd,
701 F.2d 99 (9th Cir. 1983). In moving away from this harsh result in cases where properties
designated for condemnation suffered "drastic physical deterioration and depreciation in value
before formal appropriation[,]" courts allowed damages by concluding that a de facto taking had
occurred before the statutorily required time for the land transfer or by allowing damages for loss
of income and other harm caused by the condemnation process to be included in the
condemnation award. Id.; see also W.J.F. Realty Corp. v. Town of Southampton, 351 F. Supp. 2d
18, 26 (E.D.N.Y. 2004) (discussing "bad faith" taking claims such as where a municipality had
prohibited development of the plaintiff's land so that it might more easily acquire that land and
noting that cases involving the "condemnation blight principle" were analogous).
While allowing recovery for deterioration or depreciation damages attributable to
unjustifiable delay in the condemnation process, the theory did not alter the legal basis of the
claim which is a challenge to governmental conduct (whether it be a formal regulation,
ordinance, policy, widespread practice, or denial of a development permit, etc.) that substantially
interferes with the use of the property. That is, then, a regulatory taking claim. See Picard v.
Bay Area Reg'l Transit Dist., 823 F. Supp. 1519, 1522 (N.D. Cal. 1993) ("A claim for
unreasonable pre-condemnation activity states a type of regulatory taking claim") (citing Kaiser
Dev. Co. v. City & Cty. of Honolulu, 913 F.2d 573, 575 (9th Cir. 1990)); see also Levald, Inc. v.
City of Palm Desert, 998 F.2d 680, 684 (9th Cir.1993) (distinguishing physical intrusion takings
15 - OPINION & ORDER

from a regulatory taking which "occurs when the value or usefulness of private property is
diminished by a regulatory action that does not involve a physical occupation of the property.")
(citing Penn Central, 438 U.S. 104, 123–25 (1978)).
To the extent the prior decisions of this case suggested that the portion of the inverse
condemnation claims based on the Properties impacted by the Sunrise Corridor Project were to
be adjudged under a different legal standard that the portion of the claim based on the two
properties which more clearly pleaded as-applied regulatory takings claim, the prior decisions
were wrong. The inverse condemnation claims in their entirety are regulatory takings claims.
In the FAC, Plaintiff no longer bases the inverse condemnation claims on the Con Battin
Road Property and the Sunnyside Road Property. Thus, there is no readily apparent distinction in
the allegations. Plaintiff's inverse condemnation claims as currently pleaded are based solely on
the theory that Defendant engaged in a scheme to acquire properties for public use as cheaply as
possible by "official action" and the "adoption and pursuit" of a "formal government policy"
which directed the planning staff to suppress the value of certain properties in one of two ways,
including telling prospective buyers that the properties were to be condemned for a public works
project. FAC ¶ 5; see also id. ¶ 26 (referring to the "formal policy to keep property values down"
by enacting regulations). As pleaded, this is a regulatory takings claim because distilled to its
essence, Defendant allegedly took some official action to suppress Plaintiff's property values in
anticipation of later condemning the property for the Sunrise Corridor Project.
Although my January 12, 2017 Opinion did not analyze the ripeness of the federal inverse
condemnation claim based on the Sunrise Corridor Project because of my own misunderstanding
of the nature of the claims, I did thoroughly discuss the issue in the context of the part of the
16 - OPINION & ORDER

claims based on the Con Battin Road Property and the Sunnyside Road Property. I do not repeat
that discussion here except to say that I concluded that the regulatory takings claim was not ripe
under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473
U.S. 172 (1985). Jan. 12, 2017 Op. & Ord. 22-30. In its motion to dismiss the FAC, Defendant
argues that under Williamson, the currently pleaded § 1983 inverse condemnation claim requires
dismissal based on ripeness. I agree with Defendant.
As before, Plaintiff does not classify the regulatory takings claims as either facial or asapplied. In my January 12, 2017 Opinion, I agreed with Judge Stewart that the claims based on
the alleged taking of the Con Battin Road Property and the Sunnyside Road Property were clearly
as-applied claims because Plaintiff did not generally or facially challenge the two government
development projects that led to the deprivation of access to those properties but instead
contended that a taking occurred by Defendant's implementing the two development projects as
to particular pieces of property. Jan. 12, 2017 Op. & Ord. 22. The currently pleaded inverse
condemnation allegations are less clear. On the one hand, they can be understood as a facial
challenge to the unspecified "official action" and "adoption and pursuit" of the "formal
government policy" articulated by McAllister to Weinman designed to suppress property values
in the Sunrise Corridor right-of-way. On the other hand, they can be understood as an as-applied
challenge because they appear to challenge the particular implementation of the Sunrise Corridor
Project. In the end, whether facial or as-applied, the claim is unripe.
Putting aside the first "final decision" prong of the two-part Williamson analysis which is
not uniformly applied to facial challenges, the second prong requires a property owner suing for
inverse condemnation to seek "compensation through the procedures provided by the state before
17 - OPINION & ORDER

bringing a federal suit." Williamson, 473 U.S. at 194-95. In Oregon, state procedures are
available for inverse condemnation claims. Jan. 12, 2017 Op. & Ord. 25-26 (citing cases holding
that regulatory takings claims may be brought under state law in Oregon). The FAC contains no
allegation that Plaintiff has sought compensation through state procedures.
Williamson recognized an exception to the second ripeness requirement when state
procedures are unavailable or inadequate. Williamson, 473 U.S. at 197. Although there are no
allegations in the FAC that state procedures are unavailable or inadequate, Plaintiff argues that
such is the case. Plaintiff contends that although "final decisions were made[,]" an argument
posited to satisfy the first Williamson ripeness prong, these "decisions are not, however, of a sort
for which administrative review is available, as they did not involve overt regulatory action." Pl.
Resp. 9-10. As such, Plaintiff continues, "Plaintiff has no available administrative recourse to
obtain justice for his damages from Defendant's actions." Id. at 10.
The problem, however, is that Plaintiff seeks "just compensation" as a result of what can
be described, as explained above, only as a "regulatory" taking. FAC ¶ 30 ("Emmert is entitled
to receive just compensation of not less than $16,543,517.00 for the properties taken by
Defendant"). As Williamson explained, "[t]he Fifth Amendment does not proscribe the taking of
property; it proscribes taking without just compensation." Williamson, 473 U.S. at 194. Thus,
"[i]f the government has provided an adequate process for obtaining compensation, and if resort
to that process yields just compensation, then the property owner has no claim against the
Government for a taking." Id. at 194-95 (brackets and internal quotation marks omitted). As a
result "if a State provides an adequate procedure for seeking just compensation, the property
owner cannot claim a violation of the Just Compensation Clause until it has used the procedure
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and been denied just compensation." Id. at 195.
Plaintiff cites no authority for his proposition that he has no administrative recourse
because he does not challenge "overt regulatory action." But, even assuming he is correct that
the second Williamson prong does not apply to regulatory takings accomplished pursuant to a
widespread custom and practice, Plaintiff has pleaded a § 1983 regulatory taking claim premised
on alleged overt governmental action. FAC ¶¶ 5, 26 (referring to "official actions," "adoption
and pursuit of a formal government policy," "formal policy to keep property values down" which
included "enacting regulations"). By attempting to write himself into a viable claim, Plaintiff has
written himself into Williamson's ripeness requirements. Because he fails to plead or otherwise
show that state procedures are unavailable or inadequate, his federal inverse condemnation claim
is not ripe. Levald, 998 F.2d at 687 ("a plaintiff cannot bring a section 1983 action in federal
court until the state denies just compensation. A claim under section 1983 is not ripe—and a
cause of action under section 1983 does not accrue—until that point.").
IV. Leave to Amend
The FAC is Plaintiff's sixth attempt to plead a viable claim.2 As explained in my January
12, 2017 Opinion, even though prior decisions in the case had cautioned that the next amendment
would be the last, I allowed Plaintiff "one additional time" or one "final opportunity" to
successfully plead the inverse condemnation claim. Jan. 12, 2017 Op. 34. I noted that while
leave to amend is ordinarily freely given, the district court's "'discretion to deny leave to amend is
particularly broad where a plaintiff previously has amended the complaint.'" Id. at 33-34 (quoting

2

The FAC follows the Complaint, the First Amended Complaint, the SAC, the proposed
Third Amended Complaint, and the TAC as actually filed.
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World Wide Rush, LLC v. City of L.A., 606 F.3d 676, 690 (9th Cir. 2010)). I cited additional
authority on this point as well. Id.
Plaintiff's repeated failures to set forth a viable claim against this Defendant show that
any further amendment would be futile. Plaintiff has either repleaded the same allegations or has
retained those same or similar allegations while attempting to recharacterize them as something
else in an attempt to cure the deficiencies explained by the Court. Because he has failed to
successfully plead Monell liability and has failed to plead allegations supporting the ripeness of
his § 1983 claim, I dismiss it with prejudice.
V. State Law Claim
The only basis for federal subject matter jurisdiction is the federal § 1983 inverse
condemnation claim. The dismissal of that claim leaves Plaintiff's claim based on the Oregon
Constitution. Because I have dismissed all claims over which this Court has original jurisdiction,
I exercise my discretion under 28 U.S.C. § 1367(c)(3) and decline to exercise supplemental
jurisdiction over the Oregon Constitution claim. Therefore, that claim is also dismissed.
CONCLUSION
Defendant's motion to dismiss [94] is granted.
IT IS SO ORDERED.
DATED this

day of

MARCO A. HERNANDEZ
United States District Judge
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, 2017.