Elizondo et al v. City of Junction City et al

Filing 66

OPINION AND ORDER: Granting Motion for Summary Judgment 51 . Summary Judgment is entered in defendants' favor on plaintiffs' due process and equal protection claims. Plaintiffs' takings claims are dismissed without prejudice. Plaintiffs' request for oral argument is denied as unnecessary. Signed on 5/31/2017 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
JESSE ELIZONDO and RANDEE
ELIZONDO,

Case No. 6:15-cv-01853-AA
OPINION AND ORDER

Plaintiffs,
vs.
CITY OF JUNCTION CITY; MIKE CAHILL,
Mayor of Junction City; RANDY NELSON,
City Council President; BILL DeMARCO, City
Council Member; HERB CHRISTENSEN, City
Council Member; JIM LEACH, City Council
Member; KAREN LEACH, City Council
Member; and STEVEN HITCHCOCK, City
Council Member,
Defendants.

AIKEN, Judge:
In this action, plaintiffs Jesse and Randee Elizondo sued defendants the City of Junction
City ("City"); Mike Cahill, the mayor of Junction City; and various members of the City Council
for the City of Junction City ("City Council"), seeking to enjoin defendants from cutting down a
century-old tree growing front of plaintiffs' residential property.

Plaintiffs assert that

defendants' decision to cut down the tree violates their civil rights under the United States and

PAGE 1 - OPINION AND ORDER

Oregon Constitutions. Defendants now move for summary judgment. For the reasons set forth
below, defendants' motion is granted.

BACKGROUND
Plaintiffs are a husband and wife who own real property at the corner of 6th Avenue and
Kalmia Street in Junction City, Oregon. Elizondo Deel.

~

2 Sept. 30, 2015 (doc. 7). A large

bigleaf maple tree ("the tree") sits in front of plaintiffs' house and yard, within the City's rightof-way for sidewalks.

Id~

3; Kurtz Deel. Ex. 6 Mar. 23, 2017 (doc. 52). The tree is outside the

boundary of plaintiffs' property. 1 Pannell Deel.~ 5 & Ex. 1Oct.16, 2015 (doc. 55). It is eighty
feet tall and more than one hundred years old. Elizondo
Deel.

~

Deel.~~

3, 8 Sept. 30, 2015; Elizondo

2 & Ex. H Nov. 2, 2015 (doc. 20). Plaintiffs have maintained the tree for the past

twenty-five years, including by performing maintenance at the City's request. Elizondo Deel.~ 7
Sept. 30, 2015. Plaintiffs assett the tree "by itself' has value to them, and that it also 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. Id.

~~

9-11.

According to the City Administrator, the City is engaged in the Safe Routes to School
Project ("the Project").

Knope Deel.

~

2 Oct. 15, 2015 (doc. 54).

The Project involves

modifying streets in the vicinity of Junction City High School to comply with Americans with
1

Plaintiffs continue to allege that the tree is on their propetty, within the boundary
described in their deed. Elizondo Deel.~ 6 Sept. 30, 2015. However, evidence submitted by the
City shows that plaintiffs' deed describes their prope1ty by reference to a plat map and does not
contain a metes and bounds description. Forstrom Deel.~ 5 & Ex. 2 Oct. 16, 2015 (doc. 53).
The plat map does not establish whether the tree is located within the boundaries of plaintiffs'
property. Id. Ex. 1. However, the City obtained a survey to answer that question and submitted
an expett declaration stating that the "entire trunk of the tree" is approximately eight feet outside
of plaintiffs' propetty. Pannell Deel. ~ 5. Plaintiffs have not submitted a contrary expett
opinion, survey, or any other proof to contradict defendants' evidence on the tree's location.
There is therefore no question of material fact that the tree is located outside the boundaries of
plaintiffs' lot.
PAGE 2- OPINION AND ORDER

Disabilities Act ("ADA") and other safety standards. Id Among other improvements, the plan
calls for the construction of ADA-compliant ramps at the intersection of 6th Avenue and Kalmia
Street, where plaintiffs' property and the tree are located. Id The tree poses an obstacle to
construction of the ramps because its root system has severely buckled the surrounding curb and
sidewalk. Id.

~

4 & Exs. 1-7. The City notified plaintiffs that it intended to remove the tree to

permit construction of the ramps. Id.

~

6.

Plaintiffs have persistently and vigorously opposed the City's plan to destroy the tree. In
an efforts to save the tree, they have lobbied City staff and City Council members; testified at
meetings of the City Council's Sewer and Streets Committee ("Streets Committee"); paid for a
complete evaluation, including tomography (similar to an MRI), to assess the tree's health;
obtained a second evaluation of the tree from a certified arborist; nominated the tree for "Oregon
Champion Tree" status, and gathered signatures on a "Help save our tree petition." Elizondo
Deel.~~

12, 13, 17, & Ex. A Sept. 30, 2015; Elizondo Deel. Exs. I & J Nov. 2, 2015; see also

Kelly Anderson, Junction City man fights efforts to remove tree ji·om corner (KVAL television
broadcast Oct. 14, 2015); Saul Hubbard, Root of the Problem: Junction City man tries to save
massive treeji·om the saw, The Register-Guard, Oct. 7, 2015, at Bl.

In August 2015, at the recommendation of the Streets Committee, the City Council
decided to cut down the tree. Kurtz Deel. Ex. 5 Mar. 23, 2017. The Streets Committee reached
its recommendation after devoting time at a series of three public meetings to consider what to
do about the tree, including taking evidence from plaintiffs. Id Ex. 2-4. City Council members
cited various concerns in support of their decision, including the damage to the sidewalk, id. Ex.

PAGE 3 - OPINION AND ORDER

2

4; the higher cost alternative ramp designs that could allow the tree to remain standing, id. Ex.
2; the tree's health and life expectancy, id.; a desire for a uniform type of ADA ramp on all four
corners of the intersection, id.; the possibility of future improvements to the street, including the
addition of bike lanes, id.; and the need for visual clearance at the intersection for vehicles and
pedestrians, id. Ex. 6.
Plaintiffs allege that none of defendants' justifications for cutting down the tree are
suppo1ted by the evidence. Regarding the undisputed damage to the sidewalk and curb, plaintiffs
proposed three alternate ramp designs that would be ADA-compliant while saving the tree. In
addition to suggesting use of the bulb-out ramps considered by the Streets Committee, plaintiffs
introduced an expert declaration stating that an ADA ramp could be constructed without harming
the tree by taking some material off the top of the roots, covering them with sand and gravel, and
building the ramp on top. Harper Deel. if 3 (doc. 19). Finally, plaintiffs proposed giving the City
part of their property so a sidewalk could be built around the side of the tree closest to their
house. Elizondo Deel.

if 15 Sept.

30, 2015. Acknowledging that these alternative designs would

cost more than cutting down the tree and building standard ADA ramps, plaintiffs offered to help
pay the difference. Id. Plaintiffs introduced evidence that the City has approved the construction
of bulb-outs around other trees, albeit on straight stretches of road rather than at intersections.
Elizondo Deel.

if 14 &

Exs. C-E Sept. 30, 2015.

With respect to defendants' concerns about visual clearance, plaintiffs submitted a photo
and a video purpo1ting to show that the tree does not actually block visibility at the intersection.
2

As explained at a June 1, 2015 meeting of the City Council's Sewer and Streets
Committee ("Streets Committee"), there are two types of ADA-compliant ramps: standard and
bulb-out. Bulb-out ramps, in which the sidewalk and curb curve out into the street, "are more
aesthetically pleasing and promote traffic control but they are more expensive." Elizondo Deel.
Ex. M at 2 Nov. 2, 2015. The Streets Committee voted to install standard ramps uniformly
throughout the Project area. Id.
PAGE 4 - OPINION AND ORDER

Id Ex. F; Elizondo Deel. Ex. L Nov. 2, 2015. They also allege that the City generally does not

enforce the visual-clearance provision of the City code. Plaintiffs support that allegation with
photos of trees located at other intersections near their propetiy, asserting those trees create
"visual obstruction at least as serious as our tree[.]" Elizondo Deel. Ex. G Sept. 30, 2015. They
also state that although there have been at least thirty visual-clearance complaints made to the
City since 2002, none of the other trees have been cut down. Dugan Deel.

'if 2 & Ex. A Apr. 17,

2017.
After the City Council announced its decision, 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. See Comp!. (doc. 1). That same day, plaintiffs filed a motion seeking a
preliminary injunction preventing defendants from cutting down the tree during the pendency of
this litigation. See Pis.' Mot. TRO & Prelim. Inj. (doc. 5). After oral argument, this Court
denied the motion for a preliminary injunction. Elizondo v. City of Junction City, 2016 WL
659082, at *6 (D. Or. Feb. 16, 2016), ajf'd, 669 F. App'x 855 (9th Cir. 2016) (unpublished).
Even though the Comi did not award preliminary injunctive relief, defendants have not cut down
the tree. Kurtz Deel.

'if 2.

Defendants now move for summary judgment, arguing that no question of material fact
remains as to plaintiff's due and process and equal protection claims and that plaintiffs' takings
claims are not yet ripe.
STANDARDS

Summary judgment is appropriate if "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving

PAGE 5 - OPINION AND ORDER

party has the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving patty shows the absence of a genuine

issue of material fact, the nonmoving patty must go beyond the pleadings and identify facts
which show a genuine issue for trial.

Id. at 324.

"Summary judgment is inappropriate if

reasonable jurors, drawing all inferences in favor of the nonmoving patty, could return a verdict
in the nonmoving patty's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th
Cir. 2008).
DISCUSSION

I.

Due Process Claim

Plaintiffs contend defendants' decision to cut down the tree deprives them of prope1ty
without due process of law, in violation of the Fourteenth Amendment to the United States
Constitution. See U.S. Const. amend. XIV § 1 ("No State shall ... deprive any person of life,
liberty, or property, without due process of law"). A procedural due process claim requires a
threshold showing ofa life, liberty, or property right. Brittain v. Hansen, 451F.3d982, 991 (9th
Cir. 2006). This Court previously held that although plaintiffs do not own the tree outright, they
nonetheless have a property interest in the tree. See Elizondo, 2016 WL 659082, at *3-*4. The
summary judgment record contains no evidence that requires me to revisit that holding.
In the section of their summary judgment brief addressing due process, plaintiffs argue
that the Due Process Clause requires defendants to demonstrate "actual necessity" before
removing the tree. Pis.' Resp. Mot. Summ. J. at 10 (doc. 59). As a threshold matter, I note that
it appears this argument invokes substantive rather than procedural due process. The Junction
City Municipal Code defines "street trees" as "trees, shrubs, or bushes and all other woody
vegetation on public rights-of-way within the City." Junction City Municipal Code § 12.35.030.

PAGE 6- OPINION AND ORDER

With respect to street trees, the City has the right to "remove, or cause or order to be removed,
any tree or part thereof which by reason of its nature is injurious to public improvements[.]" Id.
§ !2.35.070(F).

To the extent plaintiffs argue that defendants incorrectly deemed the tree

injurious to public improvements, thereby failing to follow the Junction City Municipal Code,
that argument is insufficient to support a constitutional claim. See Voigt v. Savell, 70 F.3d 1552,
1563 (9th Cir. 1995) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 95-96
(1984), for the proposition that a "claim against state officials that the officials failed to follow
the requirements of a state statute is a state law claim").

It appears that plaintiffs argument is better characterized as a substantive due process
claim, which is an attack on the "exercise of power without any reasonable justification in the
service of a legitimate governmental objective." Cnty. of Sacramento v. Lewis, 523 U.S. 833,
846 (1998). Plaintiffs pleaded a procedural due process claim, not a substantive due process
claim.

See First Am. Comp!. at 4 (doc. 35).

However, because the "touchstone" of both

components of due process "is protection of the individual against arbitrary action of
government," Wolff v. McDonnell, 418 U.S. 539, 558 (1974), there are times when the line
between procedural and substantive due process is blurred. See, e.g., Sierra Lake Reserve v. City

of Rocklin, 938 F.2d 951, 957 (9th Cir. 1991) ("Where, as here, the plaintiff alleges that the
denial of due process consists of an official's arbitrary action, a claim for violation of substantive
due process is indistinguishable from a claim for violation of procedural due process."), opinion

vacated in part, 987 F.2d 662, 663 (9th Cir. 1993). I therefore consider whether substantive due
process requires defendant to demonstrate "actual necessity" before it can cut down the tree.
Plaintiffs cite a series of state-cout1 cases in suppo1t of their "actual necessity" argument.
But all the cases setting out that standard (or something similar) did so as pai1 of their

PAGE 7 - OPINION AND ORDER

development of state law. Those decisions have no bearing on the requirements imposed by the
federal Due Process Clause. See Voigt, 70 F.3d at 1563 (rejecting "the inc01Tect assumption that
state law informs the second prong of the procedural due process analysis").
In the Ninth Circuit, when a plaintiff alleges that a deprivation of property violated
procedural due process, the question is whether "the government's action was clearly arbitrary
and unreasonable, having no substantial relation to the public health, safety, morals, or general
welfare." 3 Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1407 (9th Cir.
1989) (quotation marks omitted), overruled on other grounds by Armendariz v. Penman, 75 F.3d
1311, 1325 (9th Cir. 1996). Under that standard, comis "look more carefully" at the state's
reasoning ifthere is evidence that the decision "rest[s] upon inaccurate and stereotypic fears" for example, when the decision appears to be tied to suspect classifications such as race or
disability. J.W. v. City of Tacoma, Wash., 720 F.2d 1126, 1131 (9th Cir. 1983). In the absence
of a suspect classification, however, a plaintiff can prevail only by pointing to "grave unfairness"
or "deliberate and arbitrary abuse of government power" in the decisionmaking process.

Sinaloa, 882 F.2d at 1408.
In view of the entire summary judgment record, no factfinder could find that defendants
were gravely unfair or arbitrarily abused their power when they decided to cut down the tree. At
best, defendants' spotty enforcement of the City's visual clearance policy and rejection of
plaintiffs' proposed alternatives to cutting down the tree could support the inference that
defendants were unreasonable.
3

Negligence is categorically insufficient to constitute a

The is broad disagreement among the circuits regarding the specific test to be applied to
substantive due process claims alleging deprivations of propetiy, as distinct from claims alleging
deprivations of life or liberty. See Note, Erica Chee, Property Rights: Substantive Due Process
and the "Shocks the Conscience" Standard, 31 U. Haw. L. Rev. 577, 582-601 (2009)
(describing the various tests).
PAGE 8 - OPINION AND ORDER

deprivation under the Due Process Clause. Daniels v. Williams, 474 U.S. 327, 332 (1986) ("To
hold that injury caused by [negligent] conduct is a deprivation within the meaning of the
Fomieenth Amendment would trivialize the centuries-old principle of due process of law.");

Hudson v. City of Salem, 2009 WL 1227770, *11 (D. Or. May 1, 2009) ("[M]ere negligence by
government officials is insufficient to establish a substantive due process violation in this or any
other context.") Defendants are entitled to summary judgment on plaintiffs' due process claim.
II.

Equal Protection Claim
Plaintiffs next asse1i 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.") To succeed
on their "class of one" claim, plaintiffs must demonstrate defendants "(1) intentionally (2) treated
[plaintiffs] differently than other similarly situated property owners, (3) without a rational basis."

Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011). The plaintiff bears the
burden to prove each of these elements. Vil!. of Willowbrook y. Olech, 528 U.S. 562, 564-65
(2000) (per curiam). A district comi applying rational basis review does not have "license ... to
judge the wisdom, fairness, or logic" of a municipality's choices. Aleman v. Glickman, 217 F.3d
1191, 1200 (9th Cir. 2000) (quotation marks omitted).

Moreover, the government has no

obligation to justify its decision;4 rather, the plaintiff bears the heavy burden to "negative every

4

Plaintiffs rely on cases expositing the standards for reviewing administrative decisions
for the proposition that this Court can only uphold the City's decision on the basis of reasons
articulated by the City at the time of the decision. Pis.' Resp. Mot. Summ. J. at 15. But
plaintiffs do not seek review the decision of an agency, they challenge the judgment of the City
Council, a legislative body. Such a decision may be upheld on a post hoc rationale. See
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014) (characterizing
"deference to post-hoc explanations" as "central to rational basis review"); id ("This lowest
level of review does not look to the actual purposes of the [governmental decision.] Instead, it
PAGE 9 - OPINION AND ORDER

conceivable basis which might support [the differential treatment]." Id at 1201 (quotation marks
omitted).
Plaintiffs do not mount a per se challenge to the City's authority to remove street trees.
Rather, they challenge the application of that authority to their particular situation.

In a

"selective enforcement" case like this, a plaintiff may create a triable issue of fact by
demonstrating that the government's reasons for the decision were pretextual. Squaw Valley
Dev. Corp. v. Goldberg, 375 F.3d 936, 945-46 (9th Cir. 2004), overruled on other grounds by
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005). But such a claim will survive a motion for

summary judgment only if there is evidence from which a jury could find either (1) that "the
proffered rational basis was objectively false" or (2) that "that defendant actually acted on an
improper motive." Id. at 946.
After carefully considering all the evidence in the summary judgment record, I conclude
there is no triable issue of fact regarding pretext. I first consider evidence of improper motive.
In Squaw Valley, the coutt considered whether there was sufficient evidence, at the summary
judgment stage, that a regulatory board's enforcement decisions were motivated by "personal
animus."

Id at 938.

The comt found that the executive director's aggressive behavior,

statements, and decisions could support a finding of "actual hostility and antagonism" toward the
plaintiff. Id. at 947. Plaintiffs cite Squaw Valley, but do not point to any evidence in the
summary judgment record sufficient to suppo1t a finding that any defendant was hostile or
antagonistic to plaintiffs. Indeed, the record is devoid of evidence suggesting that plaintiffs'
problems with defendant "arose from anything but a disagreement over [defendants'] regulatory

considers whether there is some conceivable rational purposes" that the governmental entity
could have had in mind when it enacted the law.")
PAGE 10 - OPINION AND ORDER

practice." Id at 948. The Squaw Valley comt expressly held that such evidence was insufficient
to show pretext at the summary judgment stage.
Because they have not identified sufficient evidence of improper motive, plaintiffs' equal
protection claim can survive only if a jury could conclude the City's "proffered rational basis"
for cutting down the tree was "objectively false." Id. at 946. The evidence in the summary
judgment record cannot support such a conclusion. Here, plaintiffs largely recycle arguments
made in support of their motion for a preliminary injunction. For example, plaintiffs reiterate
that the City has built bulb-outs around other trees and fault the city for failing to cut down all
trees that pose a visual-clearance hazard at intersections. However, as explained in the opinion
and order denying the motion for a preliminary injunction,
[P]laintiffs have not identified any other prope1ty owners whose trees pose both
problems, i.e., require an alternate construction design to accommodate their roots
and are located at an intersection, thus blocking visual clearance. Even if the City
made exceptions for other trees in the past, 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.
Elizondo, 2016 WL 659082, at *6.

None of the new evidence submitted since the denial of the motion for a preliminary
injunction changes the analysis. The record still contains no comparator examples of trees that
pose both a visual-clearance problem at an intersection and would require a special construction
accommodation to avoid root damage to the sidewalk. Indeed, the summary judgment record
strengthens the City's position, as it now contains evidence that the City has removed one tree in
connection with the Safe Routes to School Project and plans to remove another. Dugan Deel.
Ex.Bat 3; Kmtz Deel.

'if 2 & Ex. 2 Apr. 28, 2017 (doc. 63). The record also contains evidence

that the City has removed trees on 6th Avenue and elsewhere in connection with past ADA

PAGE 11 - OPINION AND ORDER

upgrades. Id. at 3-4. In sum, the summary judgment record does not support a finding that the
City's proffered justifications for removing the tree are objectively false. CJ S. Pac. Transp. Co.
v. City of L.A., 922 F.2d 498, 507-08 (9th Cir. 1990) ("Presumably, the zoning might have been

more equitable, perhaps even more logical, but on its face, the ordinance displays no outward
sign of itrntionality. ")
Plaintiffs' other arguments are red herrings. The City is under no obligation to wait for a
visual-clearance complaint before removing a tree that undisputedly is within the "visual
clearance triangle" for intersections as defined by the Junction City Municipal Code. Junction
City Municipal Code§ 17.95.090. The plaintiffs' subjective beliefthat the tree does not pose an
actual visibility hazard does not change the fact that the tree is within thirty feet of the
intersection and thus violates the City's visual clearance policy.
The City has supplied several rational bases for its decision to cut down the tree. The
evidence in the summary judgment record cannot support a finding that the City's proffered
reasons are objectively false or that the City actually acted on improper motive. Accordingly,
defendants are entitled to summary judgment on plaintiffs' equal protection claim.
III.

Takings Claims
Finally, 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 public use without just compensation. See U.S. Const. amend. V ("[N]or shall
private prope1iy be taken for public use, without just compensation."); Or. Const. Art. I, § 18
("Private property shall not be taken for public use ... without just compensation[.]"); see also

Engquist v. Or. Dep't ofAgric., 478 F.3d 985, 1002 n.16 (9th Cir. 2007) ("The Takings Clause
applies against states through the Fomieenth Amendment."); Hoeck v. City of Portland, 57 F.3d

PAGE 12 - OPINION AND ORDER

781, 787 (9th Cir. 1995) ("Oregon law is identical to Fifth Amendment physical takings law")
(quotation marks omitted).
Plaintiffs concede that because defendants have not yet cut down the tree, they cannot yet
assert their takings claims. They appear to ask the court to stay consideration of those claims. I
decline that request. "There are two independent prudential hurdles to a regulatory takings claim
brought against a state entity in federal court." Suitum v. Tahoe Reg'! Planning Agency, 520
U.S. 725, 734-35 (1997). To clear those hurdles, a plaintiff must show that she has received a
"final decision regarding . . . the propetiy at issue" and that she has "sought compensation
through the procedures that the state has provided for doing so." Id at 735 (citations and
quotation marks omitted). In Daniel v. County of Santa Barbara, 288 F.3d 375, 382 (9th Cir.
2002), the Ninth Circuit explained that the same ripeness test "applies to physical takings, but in
a modified form." The first requirement "is automatically satisfied at the time of the physical
taking," while the second requirement "remains the same." Id Identical ripeness requirements
apply to claims under Oregon's Takings Clause. See Boise Cascade Corp. v. State ex rel. Bd. of
Forestry, 991 P.2d 536, 572 (Or. Ct. App. 1999).

Here, the tree has not yet been cut down. If that were the only ripeness issue, dismissal
might be unwarranted because it is undisputed that defendants have reached a final decision
regarding the tree. However, plaintiffs have not sought compensation from the state. "[I]f 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 and been
denied just compensation." Williamson Cnty. Reg'/ Planning Comm'n v. Hamilton Bank, 473
U.S. 172, 195 (1985)). Plaintiffs' takings claims are umipe and are therefore dismissed without
prejudice.

PAGE 13 - OPINION AND ORDER

CONCLUSION

Defendants' Motion for Summary Judgment (doc. 51) is GRANTED.

Summary

judgment is entered in defendants' favor on plaintiffs' due process and equal protection claims.
Plaintiffs' takings claims are dismissed without prejudice. Plaintiffs' request for oral argument is
denied as unnecessary.
Dated

this~ { day of May 2017.

Ann Aiken
United States District Judge

PAGE 14- OPINION AND ORDER