Elizondo et al v. City of Junction City et al

Filing 36

OPINION AND ORDER. Plaintiffs' motion for a preliminary injunction 5 is DENIED. The temporary restraining order in this case is VACATED. See formal OPINION AND ORDER. Signed on 2/16/2016 by Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JESSE ELIZONDO and RANDEE
ELIZONDO,
Plaintiffs,
vs.
CITY OF JUNCTION CITY; MIKE
CAHILL, Mayor of Junction
City; RANDY NELSON, City
Council President; and BILL
DEMARCO, HERB CHRISTENSEN,
JIM LEACH, KAREN LEACH, and
STEVEN HITCHCOCK, City Council
Members,
Defendants.
Marianne G. Dugan
Attorney at Law
259 E. 5th Avenue, Suite 200-D
Eugene, OR 97401
Attorney for plaintiffs
Louis L. Kurtz
Louis L. Kurtz, P.C.
1050 Willagillespie Road, Suite 5
Eugene, OR 97401
Attorney for defendants
PAGE 1 - OPINION AND ORDER

Case No.

6:15-cv-1853-AA
OPINION AND ORDER

AIKEN, Judge:
Plaintiffs

Jesse

and

Randee

Elizondo

seek

a

preliminary

injunction barring defendants the City of Junction City ("City");
Mike Cahill,

the mayor of Junction City; and Bill DeMarco,

Herb

Christensen, Jim Leach, Karen Leach, and Steven Hitchcock, members
of the City Council for the City of Junction City ("City Council"),
from

cutting

down

a

tree

residential property.

growing

in

front

of

plaintiffs 1

Because plaintiffs have not demonstrated a

fair chance of success on the merits, the motion for a preliminary
injunction is denied.
BACKGROUND
Plaintiffs are a husband and wife who own real property at the
corner of 6th Avenue and Kalmia Street in Junction City, Oregon.
A large tree ("the tree") sits in front of plaintiffs 1 house and
yard,

within the City s right-of-way for sidewalks.
1

Plaintiffs

allege they have maintained the tree for the past 25 years.

They

assert the tree increases the value of their property, provides
shade and aesthetic benefit to the neighborhood, and serves as a
habitat for migratory birds and other wildlife.
According to the City Administrator, the City is engaged in
the Safe Routes to School Project

("the Project").

The Project

involves modifying streets in the vicinity of Junction City High
School to comply with Americans with Disabilities Act ("ADA") and
other safety standards.

PAGE 2 - OPINION AND ORDER

Plaintiffs 1

property and the tree are

within the area of the Project.
calls

for

the

construction

Among other improvements, the plan
of

ADA-compliant

intersection of 6th Avenue and Kalmia Street.
June

1,

2015

Committee

meeting of

("Streets

compliant ramps:
the

sidewalk

the

Committee"),

curb

curve

at

the

As explained at a

City Council's Sewer and Streets
there

standard and bulb-out.

and

ramps

out

are

two

types

of

ADA-

Bulb-out ramps, in which

into

the

street,

"are

more

aesthetically pleasing and promote traffic control but they are
more expensive."

Doc. 20-5 at 2.

The Streets Committee voted to

install standard ramps uniformly throughout the Project area.
It is undisputed the root system of the tree has severely
damaged the surrounding curb and sidewalk.

Defendants assert the

ADA-compliant ramp cannot be constructed without removing the tree.
Accordingly,

the City determined the tree should be cut down as

part of the Project.
Plaintiffs oppose the City's plan to destroy the tree.

Their

efforts to save the tree have included direct communication with
City

staff

and

City

Council

members;

paying

for

a

complete

evaluation of the tree from Sperry Tree Care, including tomography
(similar to an MRI),

to assess the tree's health;

second evaluation of

the

tree

from

a

obtaining a

certified arborist;

and

gathering signatures on a "Help save our tree petition," Doc. 20
Ex. J.

Plaintiffs' efforts have been covered by the local press.

Kelly Anderson,

Junction City man fights efforts to remove tree

PAGE 3 - OPINION AND ORDER

from

corner

Hubbard,

(KVAL

television

Root of the Problem:

broadcast

Oct.

14,

2015);

Saul

Junction City man tries to save

massive tree from the saw, The Register-Guard, Oct. 7, 2015, at Bl.
Plaintiffs

assert

the

City

could

use

at

least

three

alternative ramp designs, none of which would require destroying
the tree.

First, plaintiffs propose the City accommodate the tree

with a bulb-out.

Second, plaintiffs have offered to give the City

a right of way over a portion of their yard so the sidewalk and
ramp could be built around the side of the tree closest to their
house.

Finally, plaintiffs suggest the City could build the ramp

over the top of the tree roots as planned by taking some material
off the top of the roots, covering them with sand and gravel, and
constructing the ramp on top.

Plaintiffs acknowledge these options

would cost the City more money than the standard ADA ramp and have
offered to help cover the cost difference.

Plaintiffs allege the

City has permitted other property owners in similar situations to
"salvage" their trees by building bulb-out sidewalks.

Pl.'s Mot.

Prelim. Inj. at 3.
The

City

plaintiffs'
2015. 1

Council

and

the

Streets

Committee

considered

arguments at a series of meetings in the summer of

The matter was taken up at the June 1, 2015; July 6, 2015;

'Although only the minutes of the June 1, 2015 Streets
Committee meeting are part of the record, the Court takes
judicial notice of the minutes of the other meetings as "not
subject to reasonable dispute because [they]
. can be
accurately and readily determined from sources whose accuracy
PAGE 4 - OPINION AND ORDER

and August 3, 2015 meetings of the Streets Committee.
Jesse Elizondo spoke at

the July 6 meeting,

Plaintiff

and the Committee

discussed the tree evaluations obtained by plaintiffs and various
options for ramp design at the meetings.

The full City Council

addressed the matter at the August 25, 2015 meeting.

Ultimately,

the City Council decided to move forward with cutting down the
tree, citing public safety concerns.
Although not mentioned by defendants in their briefs to this
Court, one such safety concern appears to be that the tree blocks
visual clearance at the intersection.

City rules require drivers

and pedestrians at an intersection have a clear view 30 feet to the
left and to the right.

Plaintiffs contend this justification is

pretextual, asserting there is a clear view from the stop sign in
front of their house.

They further allege the City generally does

not enforce this requirement, arguing nearly every corner in the
vicinity of their home contains a visual obstruction "at least as
serious" as the tree.

Pl.'s Mot. Prelim. Inj. at 4.

cannot reasonably be questioned." Fed. R. Evid. 20l(b) (2) i see
Nasrawi v. Buck Consultants, LLC, 713 F. Supp. 2d 1080, 1083 n.4
(E.D. Cal. 2010) (taking judicial notice of a public agency's
board meeting minutes) . The minutes are available through the
City's website, organized by date, at
http://www.junctioncityoregon.gov/index.asp?Type=B_LIST&SEC={949C
B97C-4881-4C03-BE23-3E16203FA13D} (City Council) and
http://www.junctioncityoregon.gov/index.asp?Type=B_BASIC&SEC={l32
BADE7-3F88-4D1A-8507-D3A4D5BD0883}&DE={5B16E739-FB66-4EED-BC16-4D
BB2E89C95D} (Streets Committee).
PAGE 5 - OPINION AND ORDER

The tree was scheduled to be cut down on October 7, 2015.

On

September 30, 2015, plaintiffs filed this action in federal court,
asserting defendants' plan to destroy the tree violates the Takings
Clause,

Due Process Clause,

and Equal Protection Clause of the

United States Constitution, as well as the Takings Clause of the
Oregon Constitution.
seeking a

temporary

That same day,
restraining

plaintiffs filed a motion

order

( "TRO")

and preliminary

injunction preventing defendants from cutting down the tree during
the pendency of this litigation.

The court granted plaintiffs'

motion for a TRO on October 6, 2015, and heard oral argument on the
motion for a preliminary injunction on December 11, 2015.
STANDARDS
"A plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an injunction
is

in

the

public

interest."

Council, 555 U.S. 7, 20 (2008).

Winter

v.

Nat' 1

Resources

Def.

Under the Ninth Circuit's "sliding

scale" approach, "the elements of the preliminary injunction test
are balanced, so that a stronger showing of one element may off set
a

weaker

Cottrell,

showing of

another. "

632 F.3d 1127,

1131

All.

for

(9th Cir.

the Wild Rockies

2011).

For example,

v.
a

preliminary injunction is appropriate if "serious questions going
to

the merits

[are]

raised and the balance of

PAGE 6 - OPINION AND ORDER

hardships

tips

sharply in

[plaintiffs']

favor,

/1

so long as the plaintiff also

makes a showing on the other two prongs of the Winter test.

Id.

(citing Clear Channel Outdoor,

340

F.3d 810, 813

Inc. v.

(9th Cir. 2003)).

City of Los Angeles,

A plaintiff has raised "serious

questions" going to the merits if she shows at least a "fair chance
of success" and points to "substantial, difficult, and doubtful"
inquiries requiring "more deliberative investigation.

/1

Republic of

the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988).
DISCUSSION
If

the

City

cuts

down

the

tree,

plaintiffs

will

suffer

irreparable harm, because "environmental injury, by its nature, can
seldom

be

adequately

remedied

by

money

damages

and

is

permanent or at least of long duration, i.e., irreparable[.]"

often
See

All. for the Wild Rockies, 632 F.3d at 1135 (quoting Lands Council
v. McNair, 537 F.3d 981, 1004 (9th Cir. 2008))
marks omitted) .

(internal quotation

This strong showing on one of the Winter prongs

prompts the Court to ask whether plaintiffs have shown at least a
"fair chance of success" on any of their claims.

Republic of the

Philippines, 862 F.2d at 1362.
I. Due Process Claim
Plaintiffs contend defendants' decision to cut down the tree
deprives them of property without due process of law, in violation
of the Fourteenth Amendment to the United States Constitution.
U.S.

Const.

amend.

XIV

§

PAGE 7 - OPINION AND ORDER

1

("No State shall

See

. deprive any

person of life, liberty, or property, without due process of law").
A procedural due process claim requires a threshold showing of a
life,

982, 991 (9th Cir. 2006).
to

Brittain v. Hansen,

liberty, or property right.

plaintiff's

motion

451 F.3d

Defendants' sole argument in opposition
for

a

preliminary

injunction

is

that

tree.

In

plaintiffs have failed to make such a threshold showing.
Plaintiffs

initially

alleged

they

owned

the

response, defendants introduced (1) a copy of the plat of Washburne
and Milliorn's Addition, the area in which plaintiffs' property and
the tree are

located,

Doc.

12-1 at 1,

and

(2)

a

copy of

the

warranty deed by which plaintiffs acquired their property, Doc. 122

at 1.

Defendants also submitted the declaration of K.

Pannell

("Pannell"),

reviewed

the

plat

a

professional

land

and warranty deed,

surveyor.

performed a

Jay

Pannell

survey,

and

concluded "the entire trunk of the tree is 8 feet more or less
outside the boundary of

[plaintiffs']

property" and "the entire

trunk of the tree is well within the right-of-way for 6th Avenue."
Doc. 13 & Ex. 1.

In Oregon, properly dedicated and platted streets

are public property.
1922)

See Ford v.

Graham,

209 P.

613,

613

(Or.

(affirming judgment for plaintiff who purchased a piece of

real property, a house and fruit trees, then discovered part of the
house and all of

the

trees were not

located on the purchased

property but on a "properly platted and dedicated" but undeveloped
street);

City of Eugene v.

PAGE 8 - OPINION AND ORDER

Garrett,

170 P.

731,

731

(Or.

1918)

(where a street has been dedicated,

and the plat and dedication

"duly recorded," the entire platted road is public property and the
city is "trustee of streets for the use of the public").

Although

plaintiffs do not concede the accuracy of Pannell's survey, they
have not introduced any evidence to suggest the tree is actually on
their property.

Accordingly, for the purposes of this motion, the

Court assumes plaintiffs do not own the tree.
Plaintiffs,

however,

interest in the tree.

also assert a second type of property

They argue even if the tree is on public

property, they have "a right in the nature of an easement to grow
and maintain a shade tree in the street in front of their premises,
and may maintain an action against a wrongdoer for injuring the
tree,

or

removing

Corporations,
Code

§

it."

lOA McQuillen,

30:65 (3d ed. 1990).

recognizes

such

a

property

The

Law

of

Municipal

The Junction City Municipal
interest.

It

specifically

addresses "street trees," defined as "trees, shrubs, or bushes and
all

other woody vegetation on public

City."

Junction

City

Municipal

Code

rights-of-way within
§

12.35.030.

the

Adjacent

property owners are responsible for street tree maintenance and are
liable for damage caused by failure to properly prune and otherwise
care for street trees.

Id.

§

12.35.070(B)-(C).

The City has the

authority to assess adjacent property owners for costs associated
with pruning or removing improperly maintained street trees.
§

12.35.080(C).

PAGE 9 - OPINION AND ORDER

Id.

The City retains the right to "remove, or cause or order to be
removed, any tree or part thereof which is in an unsafe condition
or which by reason of its nature is injurious to
improvements[.]"

Id.§ 12.35.070(F).

. public

.

This tracks the common law,

which generally makes an abutting owner's right to maintain a shade
tree subject to "the superior rights of the public by its proper
authorities

to

purposes[.]"

improve

and

maintain

the

streets

for

public

lOA McQuillen, The Law of Municipal Corporations, §

30:65 (3d ed. 1990).

As a general rule, "[i]t is well settled that

a municipality

may remove trees, when necessary, as against

the

objection of

the

abutting owner,

without

compensation,

connection to making improvements on the street[.]"
However,

"a

municipality

cannot

cut

down

or

in

Id. § 30:66.

remove

a

tree

arbitrarily where there is no real necessity or good reason for so
doing,

as against the objections of the abutting owner."

30:66.
Defendants

argue,

in

essence,

that

the

City

has

an

unconditional right to remove the tree at any time and for any
reason.

See Def.'s Mem.

Opp.

Prelim.

Inj. at 4

(arguing it is

"irrelevant" whether the tree could be salvaged through alternative
ramp/sidewalk designs, whether the tree or other nearby trees block
visibility

at

the

intersection,

and

whether

"plaintiffs

were

provided with a meaningful opportunity to challenge the decision to
remove the tree").

Such an unconditional right is inconsistent

PAGE 10 - OPINION AND ORDER

with the

common

law and

the

code provisions

set

forth above,

neither of which grants the City an unfettered right to remove the
tree.
tree

Rather, as relevant here, the City 1 s right to cut down the
hinges

on

"injurious to

whether

the

tree

is,

. public improvements.

Code§ 12.35.070(F).

11

as

defendants

assert,

Junction City Municipal

Municipalities are due considerable deference

in making such decisions,

but that does not extinguish adjacent

owners 1 property interest in street trees.

I find plaintiffs have

adequately demonstrated a property interest in the tree.
The next step of the inquiry is determining whether plaintiffs
have demonstrated a "fair chance,

/1

Republic of the Philippines, 8 62

F.2d at 1362, that the City failed to afford them adequate process,
which consists of notice and "an opportunity to be heard
a meaningful time and in a meaningful manner.
407 U.S. 67, 80 (1972)

11

. at

Fuentes v. Shevin,

(citation and quotation marks omitted).

It

is undisputed plaintiffs knew about the City 1 s plan to cut down the
tree.
(9th

See Espinosa v. U.S. Aid Funds,
Cir.

2008)

(actual

procedural due process).

notice

Inc., 553 F.3d 1193, 1203

satisfies

notice

component

of

Thus, the question is whether plaintiffs

were afforded an opportunity to be heard.
Due

process

does

not

otherwise formal hearing.
Agric.,

always

require

Buckingham v.

603 F.3d 1073, 1082-83

an

adversarial

or

Sec'y of U.S. Dep 1 t

of

(9th Cir. 2010); see also Memphis

Light, Gas, & Water Div. v. Craft, 436 U.S. 1, 16 n.17 (1978)

PAGE 11 - OPINION AND ORDER

("The

opportunity for informal consultation with designated personnel
empowered to correct a mistaken determination constitutes a due
process

hearing

in

appropriate

circumstances.")

The

core

requirement is to give the individual the "opportunity to speak up
in his own defense" while the government "listen[s] to what he has
to say," because "fairness rarely can be obtained by secret, oneFuentes,

sided determination of facts decisive of rights."
U.S. at 81.
be

407

Under some circumstances, notice and an opportunity to

heard at

a

public meeting may satisfy the
Littlefield v.

procedural due process.

requirements

City of Afton,

of

785 F.2d

596, 603 (8th Cir. 1986), overruled on over grounds as recognized
.Qy Bituminous Materials,

Inc. v. Rice Cnty., Minn., 126 F.3d 1068,

1070 (8th Cir. 1997).
Here, plaintiffs were able to argue their case to City staff,
who presented plaintiffs'

concerns and various options at three

meetings of the Streets Committee and one meeting of the full City
Plaintiff Jesse Elizondo spoke directly to the Streets

Council.

Committee during the July 6, 2015, meeting.
and

City

Council

considered

evidence

The Streets Committee

obtained

by

plaintiffs

regarding the tree's health and alternative ramp designs.
the

City Council

did not

ultimately adopt

any of

Although

plaintiffs'

proposed alternatives, plaintiffs had a meaningful opportunity over
the course of several months and multiple public meetings to be
heard.

Under the circumstances, this process was constitutionally

PAGE 12 - OPINION AND ORDER

Accordingly,

adequate.

plaintiffs

have

not

demonstrated

the

requisite likelihood of success on their due process claim.
II. Takings Claims
Plaintiffs assert destruction of the tree would violate the
Takings Clauses of the United States and Oregon Constitutions,
which prohibit the government from taking private property for
See U.S. Const. amend. V

public use without just compensation.

("[N]or shall private property be taken for public use,
just compensation."); Or. Const. Art. I,
shall

not

be

taken

for

public

§

without

18 ("Private property
without

use

just

compensation[.]"); see also Or. Dep't of Agric., 478 F.3d 985, 1002
n.16

(9th Cir.

states

through

Portland,

57

2007)
the

F.3d

("The Takings Clause applies against
Fourteenth Amendment.");

781,

787

(9th

Cir.

Hoeck v.

1995)

City

of

law

("Oregon

identical to Fifth Amendment physical takings law."

the

is

(quotation

marks omitted)).
Plaintiffs' takings claims do not warrant injunctive relief,
preliminary or otherwise.

"Equitable relief is not available to

enjoin an alleged taking . . . when a suit for compensation can be
brought

against

the

sovereign

Ruckelshaus v. Mosanto Co.,
Stop

the

Beach

subsequent

467 U.S.

Renourishment,

Inc.

986,
v.

1016
Fla.

to

the

taking."

(1984); see also
Dep't

of

Envt'l

Protection, 560 U.S. 702, 741 (2010) (Kennedy, J., concurring) ("It
makes perfect sense that the remedy for a Takings Clause violation

PAGE 13 - OPINION AND ORDER

is only damages,
property,

it

as the Clause does not proscribe the taking of

proscribes

taking

without

just

compensation."

(internal quotation marks omitted)).
III. Equal Protection Claim
Finally, plaintiffs assert defendants' decision to destroy the
tree violates their right to equal protection under the Fourteenth
Amendment.

See U.S. Const. amend. XIV,

§

1 ("No State shall . . .

deny to any person within its jurisdiction the equal protection of
the laws.")
must

To succeed on their "class of one" claim, plaintiffs

demonstrate

[plaintiffs]
owners,
Mont.,

(3)

defendants

"(1)

intentionally

without a rational basis."

Gerhart v.

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

v. Olech, 528 U.S. 562, 564-65 (2000)
no

requirement

a

plaintiff

Lake Cnty.,

The plaintiff bears
Village of Willowbrook

(per curiam).

demonstrate

"motivated by subjective ill will," Gerhart,

a

Although there
defendant

2000).

Aleman v.

Glickman,

was

637 F. 3d at 1022,

rational-basis review is an "exceedingly low level of
scrutiny."

treated

differently than other similarly situated property

the burden to prove each of these elements.

is

(2)

217 F. 3d 1191,

1201

judicial
(9th Cir.

A district court applying rational basis review does not

have "license . . . to judge the wisdom, fairness, or logic" of a
municipality's choices.

Id.

at 1200

(quotation marks omitted) .

Moreover, the government has no obligation to justify its decision;
rather,

the plaintiff bears the heavy burden to "negative every

PAGE 14 - OPINION AND ORDER

conceivable

basis

treatment]."

Id. at 1201 (quotation marks omitted).

which

might

[the

support

differential

Plaintiffs have failed to satisfy this demanding requirement.
It

is

undisputed the City's decision to cut down the

intentional.

However,

plaintiffs have

tree

failed to show a

is

"fair

chance" they will succeed on the other two prongs of their class of
one claim.
questions

Republic of the Philippines,
whether

plaintiffs

are

862 F.2d at 1362.

similarly

situated

to

The
other

adjacent property owners whose trees have not been cut down and
whether

the

City

has

a

rational

basis

for

the

differential

treatment are really two sides of the same coin, because a holding
two groups are not similarly situated "amounts to a determination
that

the

state

has

a

constitutionally

treating the groups differently."

sufficient

reason

Seeboth v. Allenby,

for

789 F.3d

1099, 1105 (9th Cir. 2015).
There are at least two rational bases for the differential
treatment apparent from the record.

First, as noted, plaintiffs

introduced evidence the City has constructed bulb-outs in the past
to avoid cutting down trees.

Plaintiffs also introduced evidence

showing trees at nearby intersections block visual clearance.

But

plaintiffs have not identified any other property owners whose
trees pose both problems, i.e., require an alternate construction
design

to

accommodate

their

PAGE 15 - OPINION AND ORDER

roots

and

are

located

at

an

intersection,

thus blocking visual clearance. 2

made exceptions for other trees in the past,

Even if the City
it rationally may

decline to expend City resources to make an exception for a tree
that poses a safety hazard.

Put another way, plaintiffs have not

identified similarly situated individuals who have been treated
differently by the City.
Second,

in the newspaper article submitted by plaintiffs,

Council members expressed a desire to keep the intersection and
street aesthetically uniform.

Saul Hubbard, Root of the Problem:

Junction City man tries to save massive tree from the saw,
Register-Guard, Oct. 7, 2015, at Bl.

The

Even if plaintiffs paid the

extra cost for a bulb-out or other special ramp for their tree, the
City would then be forced to pay the extra costs for all other
ramps at the intersection in order to maintain uniformity.
aesthetics

and cost

provide

a

second

rational

reason

Thus,

for

the

decision to cut down this tree while leaving trees on other streets
standing.

See Clark v. City of Los Angeles,

(9th Cir. 1981)

650 F.2d 1033, 1039

(approving aesthetics as a possible rational basis

for a zoning ordinance) .

Again, this renders plaintiffs' situation

dissimilar from that of other adjacent property owners whose street
trees have been saved through bulb-outs or been left standing at

2

Asserting the visual-clearance argument is entirely
pretextual, plaintiffs introduced a photo purporting to show the
tree does not block visual clearance at the intersection.
For
the limited purposes of ruling on this motion, I find the tree
does block visual clearance.
PAGE 16 - OPINION AND ORDER

intersections.

Thus,

plaintiffs

have

not

made

the

requisite

showing of success on their equal protection claim. 3
CONCLUSION
Plaintiffs' motion for a preliminary injunction (doc. 5)
DENIED.

is

The temporary restraining order in this case is VACATED.

IT IS SO ORDERED.
Dated this

of February 2016.

Ann Aiken
United States District Judge

3

Because plaintiffs did not meet the likelihood of success
showing on any of their claims, it is unnecessary to address the
remaining two Winter factors.
PAGE 17 - OPINION AND ORDER