petition for a writ of certiorari, west linn corporate park llc v. city of west linn (filed...

8/4/2019 Petition for a Writ of Certiorari, West Linn Corporate Park LLC v. City of West Linn (filed 9-6-2011)

1/169

No. 11-___

WILSON-EPES PRINTINGCO.,INC. (202)789-0096 WASHINGTON,D.C.20002

IN THE

Supreme Court of the United States

WEST LINN CORPORATE PARKL.L.C.,Petitioner,

v.

CITY OF WEST LINN,BORIS PIATSKI and

DOE DEFENDANTS 1THROUGH 10,Respondents.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL T.GARONE

Counsel of RecordD.JOE WILLISSARA KOBAKSCHWABE,WILLIAMSON

&WYATT, P.C.1211 SW Fifth Ave.Suites 1600-1900Portland, OR 97204(503) 222-9981

mgarone@schwabe.comCounsel for Petitioner


2/169

(i)

QUESTIONS PRESENTEDLocal governments frequently require property

owners to dedicate private property to public use as acondition for governmental approval of discretionaryproperty development permits. In Nollan v. Califor-nia Coastal Commission, 483 U.S. 825 (1987), and

Dolan v. City of Tigard, 512 U.S. 374 (1994), thisCourt held that such adjudicative property exactions

violate the Fifth Amendment to the United StatesConstitution as uncompensated takings unless anessential nexus exists between the property exac-

tion and a legitimate state interest, and the propertyexaction is roughly proportional to the projectedimpact of the development. In this case, a localgovernmental entity required petitioner to constructand dedicate numerous off-site physical improvementson public property as a condition for governmentalapproval of discretionary permits to develop peti-tioners property notwithstanding the absence of pro-portionality between the property exacted and theprojected impact of the development. The two ques-tions presented are:

1. Do the essential nexus and rough propor-tionality requirements ofNollan and Dolan applyequally to exactions of personal property as they do toexactions of real property?

2. Did the court below misconstrue this Courtsdecision inLingle v. Chevron USA Inc., 544 U.S. 528(2005), when it refused to apply the protection of theFifth Amendment to an exaction of personal property?


3/169

ii

RULE 14.1(b) STATEMENT OF PARTIESTO THE PROCEEDINGS

The following were parties to the proceedingsin the United States Court of Appeals for the NinthCircuit:

1. West Linn Corporate Park, L.L.C., Plaintiff-Appellee/Cross-Appellant

2. City of West Linn, Defendant-Appellant/Cross-Appellee

3. Boris Piatski, Defendant-Appellant/Cross-Appellee

4. Doe Defendants, 1 through 10, Defendants-Appellants/Cross-Appellees

RULE 29.6 CORPORATEDISCLOSURE STATEMENT

Petitioner West Linn Corporate Park, L.L.C. is anOregon limited liability corporation. Petitioner hasno parent corporation, is not publicly held, and nopublicly-held corporation owns 10% or more of its

stock.


4/169

(iii)

TABLE OF CONTENTSPage

QUESTIONS PRESENTED................................ i

RULE 14.1(b) STATEMENT PARTIES .......... ii

RULE 29.6 CORPORATE DISCLOSURESTATEMENT ................................................... ii

TABLE OF CONTENTS ..................................... iii

TABLE OF AUTHORITIES ................................ v

OPINIONS BELOW ............................................ 1

JURISDICTION .................................................. 2

CONSTITUTIONAL PROVISION INVOLVED 2

STATEMENT OF THE CASE ............................ 2

A. Factual Background ................................... 4

B. Proceedings Below ...................................... 11

REASONS FOR GRANTING THE PETITION .. 18

A. This Court Has Not Defined theExactions That Trigger the Protections

of the Fifth Amendment and the Re-quirements ofNollan andDolan .............. 19

B. The Ninth Circuits Decision is in DirectConflict with Decisions of Other Courts .. 22

C. The Conflict Among State Courts andLower Federal Courts Has BeenEngendered by Confusion About ThisCourts Decision inLingle ........................ 28

CONCLUSION .................................................... 32

APPENDIX

APPENDIX A Oral Decision of DistrictCourt dated July 15, 2005 ............................. 1a


5/169

iv

TABLE OF CONTENTSContinuedPage

APPENDIX B Order Denying Motion toReconsider of District Court datedSeptember 22, 2005 ........................................ 15a

APPENDIX C Judgment on Decision byDistrict Court dated September 22, 2005 ... 18a

APPENDIX D Ninth Circuit Order Certify-ing Questions to the Oregon SupremeCourt dated July 28, 2008 ............................. 22a

APPENDIX E Oregon Supreme CourtOpinion Answering Certified Questionsdated September 23, 2010 ............................ 52a

APPENDIX F Ninth Circuit Memorandumdated April 18, 2011 ..................................... 118a

APPENDIX G Ninth Circuit Order DenyingPetition for Panel Rehearing and Rehear-ing En Banc dated June 7, 2011 .................. 126a


6/169

v

TABLE OF AUTHORITIESCASES Page

Agins v. City of Tiburon, 447 U.S. 255(1980) ......................................................... 29

Benchmark Land Co. v. City of BattleGround, 972 P.2d 944 (Wash. Ct. App.2000) .......................................................... 25

Brown v. Legal Foundation, 538 U.S. 216(2003) ......................................................... 27

Dolan v. City of Tigard, 512 U.S. 374

(1994) ........................................................passim Ehrlich v. City of Culver City, 911 P.2d429 (Cal. 1996) ............................... 18, 23-24, 31

Flower Mound, Texas v. Stafford Estate Ltd Partnerships, 135 S.W.3d 620 (Tex.2004) .......................................................... 24

Home Builders Assn of Cent. Ariz. v. Cityof Scottsdale, 930 P.2d 993 (Ariz. 1997) ... 25

Home Builders Assn of Dayton & theMiami Valley v. City of Beavercreek, 729N.E.2d 349 (Ohio 2000) ............................ 25

Krupp v. Breckenridge Sanitation Dist., 19P.3d 687 (Colo. 2001) ................................ 25Lingle v. Chevron USA Inc., 544 U.S. 528

(2005) .................................................... 17, 28-31Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982) ........................ 29 Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ................................. 29Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687 (1999) .......................... 18 Nollan v. California Coastal Commission,

483 U.S. 825 (1987) ..................................passim


7/169

vi

TABLE OF AUTHORITIESContinuedPage

Northern Illinois Home Builders Assn v.County of DuPage, 649 N.E.2d 384 (Ill.1995) .......................................................... 25

Penn Central Transp. Co. v. New YorkCity, 438 U.S. 103 (1978) .......................... 29

Perry v. Sindermann, 408 U.S. 593 (1972) .. 30 Phillips v. Washington Legal Foundation,

524 U.S. 156 (1998) ................................... 27

Pickering v. Board of Education, 391 U.S.563 (1968) .................................................. 30 Ruckelshaus v. Monsanto Co., 467 U.S.

986 (1984) .................................................. 32San Remo Hotel v. City and County of San

Francisco, 41 P.3d 87 (Cal. 2002) ............. 23St. Johns River Water Mgt. Dist. v. Koontz,

5 So. 3d 8 (Fla. Dist. Ct. App. 2009) ......... 24Toll Bros., Inc. v. Board of Chosen Free-

holders of Burlington, 944 A.2d 1, 13 n 2(N.J. 2008) ................................................. 25

Waters Landing Ltd. Pship v. MontgomeryCounty, 650 A.2d 712 (Md. 1994) ............. 26

CONSTITUTION, STATUTES, RULES ANDREGULATIONS

U.S. Const. amend. I .................................... 12U.S. Const. amend. V ..................................passim28 U.S.C. 1254(1) ....................................... 228 U.S.C. 1331 ........................................... 11Or. Rev. Stat. 28.200 ................................. 2, 13Sup. Ct. R. 10(a) ........................................... 23


8/169

vii

TABLE OF AUTHORITIESContinuedMISCELLANEOUS Page

Mark W. Cordes, Legal Limits on Develop-ment Exactions: Responding to Nollanand Dolan, 15 N. Ill. U. L. Rev. 513(1995) ......................................................... 27

Mark Fenster, Takings Formalism andRegulatory Formulas: Exactions and theConsequences of Clarity, 92 Calif. L.Rev. 609 (2004) .......................................... 31

Timothy M. Mulvaney, The Remnants ofExaction Takings, 33 Environs Envtl. L& Poly J. 189 (2010) ................................. 31

Jane C. Needleman, Exactions: ExploringExactly When Nollan and Dolan Should Be Triggered, 28 Cardozo L. Rev. 1563(2006) ......................................................... 31

Daniel L. Siegel, Exactions After Lingle: How Basing Nollan and Dolan on theUnconstitutional Conditions Doctrine

Limits Their Scope, 28 Stan. Envtl. L. J.

577 (2009) .................................................. 18, 31


9/169

IN THESupreme Court of the United States

No. 11-___

WEST LINN CORPORATE PARKL.L.C.,Petitioner,

v.

CITY OF WEST LINN,BORIS PIATSKI andDOE DEFENDANTS 1THROUGH 10,

Respondents.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

West Linn Corporate Park, L.L.C. (WLCP) re-spectfully petitions for a writ of certiorari to reviewthe judgment of the United States Court of Appealsfor the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the United States District Courtfor the District of Oregon is unreported. (App., infra,1a-14a.) The first opinion of the Ninth Circuit isreported at West Linn Corporate Park L.L.C. v. City

of West Linn, 534 F.3d 1091 (9th Cir. 2008). (App.,infra, 22a-51a.) That opinion certified three ques-tions of Oregon land-use law to the Oregon Supreme


10/169

2

Court under the certification procedure prescribed byOr. Rev. Stat. 28.200et seq. The Oregon SupremeCourts opinion answering the Ninth Circuits threecertified questions is reported at West Linn Corporate

Park L.L.C. v. City of West Linn, 240 P.3d 29 (Or.2010). (App., infra, 52a-117a.) The Ninth Circuitssubsequent opinion is reported at West Linn Cor-

porate Park L.L.C. v. City of West Linn, 2011 U.S. App. LEXIS 7911 (9th Cir. Apr. 18, 2011). (App.,infra, 118a-125a.)

JURISDICTIONThe Ninth Circuits most recent opinion was en-

tered on April 18, 2011. The Ninth Circuit subse-quently denied a timely petition for panel rehearingand for rehearing en banc on June 7, 2011. (App.,infra, 126a-127a). The jurisdiction of the UnitedStates Supreme Court is invoked in a timely mannerunder 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Consti-tution provides, in part, that [n]o person shall be . . .deprived of life, liberty, or property, without dueprocess of law; nor shall private property be taken forpublic use, without just compensation.

STATEMENT OF THE CASE

In Nollan v. California Coastal Commission, 483U.S. 825 (1987), andDolan v. City of Tigard, 512 U.S.374 (1994), this Court instructed that the TakingsClause of the Fifth Amendment to the United States

Constitution does not allow a governmental entityto exact property as a condition for discretionaryapproval of a land development permit unless the


11/169

3

exaction has an essential nexus with, and is roughlyproportional to, the impact of the proposed develop-ment. In applyingNollan andDolan over the years,courts have become deeply divided over the thresholdquestion of what property exactions trigger theprotection of the Takings Clause and the applicationof the essential nexus and rough proportionalityrequirements ofNollan andDolan. In this case, theNinth Circuit took the narrow view shared by somecourts that the essential nexus and rough pro-portionality requirements ofNollan andDolan apply

to only cases in which the governmental entity hasconditioned the approval of a development permit onthe dedication of real property to the public. Butother courts have taken the exact opposite view, con-cluding that the essential nexus and rough propor-tionality requirements ofNollan and Dolan applybroadly to all property exactions, including exactionsrequiring property owners to dedicate other goods orservices to the public or to make monetary payments.

This conflict is significant. Property exactions areimposed routinely as conditions for development

permits, making this issue arise frequently in bothstate courts and lower federal courts. The different

views have caused significant uncertainty about theconstitutional limitations on such exactions and haveresulted in a lack of uniformity in the treatment offederal takings claims. Because the conflict isunlikely to be resolved without clarification from thisCourt, this Court should grant review to address theapplication of the essential nexus and roughproportionality requirements ofNollan andDolan toexactions that do not involve the dedication of real

property.


12/169

4

A. Factual BackgroundPetitioner WLCP is an Oregon limited liability

company engaged in the business of commercial landdevelopment and commercial leasing. WLCP ownsreal property in West Linn, Oregon that is zonedfor commercial development. This case concernsexactions amounting to a total of $824,452.00 thatrespondent City of West Linn (the City) imposed asconditions for WLCP and its predecessor-in-interestto develop the property into a corporate office park.

Development History. WLCPs predecessor-in-interest started the effort to develop WLCPsproperty into a corporate office park in 1996. (App.,infra, 26a.) After participating in various planningmeetings with the City and complying with numerouspre-application requirements, WLCPs predecessor-in-interest provided the City with final design plansfor developing the property in November 1997.(App., infra, 26a.) In March 1998, the City approvedthe design with numerous conditions, includingconditions requiring the construction and delivery of

numerous on-site and off-site public improvements tothe City. (App., infra, 26a-30a.)

Following the Citys conditional approval of theproject, the property was transferred from WLCPspredecessor-in-interest to WLCP. (App., infra, 30a.)WLCP was then required to sign a Public Improve-ments Guarantee (or PIG) with the City to obtainpermission for the proposed development. (App.,infra, 30a-31a.) The PIG memorialized the condi-tions for the development and required WLCP tosecure its performance of the various off-site public

improvement projects with a $264,000 performancebond. (App., infra, 31a.)


13/169

5

Around the same time that WLCPs property wasbeing developed, other nearby properties also werebeing developed. (App., infra, 26a.) On the lotimmediately south of WLCPs property, a nationalgrocery store chain was developing a large shoppingcenter. (Ninth Circuit Supplemental Excerpt ofRecord 0048.) On the lot immediately north ofWLCPs property, a company named Show Timberwas developing a 438-unit residential complex calledthe Summerlinn Apartments. (App., infra, 26a.) Inimposing the conditions on the development of

WLCPs property, the City made no findings aboutthe projected impact of the WLCP project as com-pared to other developments in the area. The Cityalso made no findings whether the conditions that itimposed for the WLCP project were related androughly proportional to the projected impact of theproject.

Required Public Improvement Projects. Thepublic improvement conditions for approval of theWLCP project included on-site public improvementsalong the frontage of WLCPs property, including

waterlines within those streets. (App., infra, 26a-31a.) In addition, the City also required WLCP tocomplete numerous costly public improvement pro-

jects, which were not located on WLCPs property butwhich were located on nearby public property. (App.,infra, 26a-31a.) The Citys conditioning of WLCPsdevelopment permit on the construction and deliveryof those off-site public improvements without anyconsideration of whether the required off-site publicimprovements were related and roughly proportionalto the projected impact of WLCPs corporate office

park forms the basis of WLCPs takings claims inthis case.


14/169

6

Willamette Falls Drive Waterline Project. Oneof the required off-site public improvement projectswas the construction of the second phase of a majorwaterline for the City called the Willamette FallsDrive waterline. (App., infra, 32a.) When the Cityinitially required the construction and delivery ofPhase II of the Willamette Falls Drive waterline as acondition for the development of WLCPs property,the City represented that the waterline could bebuild along a stretch of land underneath transmis-sion lines that the City had already engineered.

(App., infra, 32a.) Based on that construction plan,the City claimed that WLCPs cost for completing theoff-site public improvement would be virtually onlythe cost of installing the pipe. (App., infra, 32a.)

Contrary to the Citys initial representations, theCity ultimately required WLCP to construct approx-imately 1,400 feet of waterline through a stretch ofsolid rock along Willamette Falls Drive. (App., infra,32a.) WLCP was able to split the cost of thissubstantial project with Show Timber because theCity separately required Show Timber to construct

the same waterline in order for Show Timber toobtain approval for development of Show Timbersresidential complex. (App., infra, 31a-32a.) Evensplitting the cost with Show Timber, the total costto WLCP for the Willamette Falls Drive waterlineproject was $172,049. (App., infra, 32a.) Because theCity conditioned WLCPs development permit on theconstruction of the Willamette Falls Drive waterlineproject separately from Show Timber, WLCP wouldhave been liable for the entire cost of the project ifShow Timber had been unwilling or unable to

contribute to the project.


15/169

7

In addition to the significant cost for the requiredWillamette Falls Drive waterline project, the uncon-troverted evidence at trial revealed that the Citysown experts determined that any impact fromWLCPs project actually required only minimalwaterline upgrades. As a condition for approval,WLCP was required to finance a review by the Cityswater engineer about the off-site and on-siteimprovements that would be needed for WLCPsproject, including the construction of Phase II of theWillamette Falls Drive waterline. (App., infra, 29a.)

That review showed that the requirements imposedon WLCP were grossly disproportional to theprojected impact of its development.

In April 1998, the Citys water expert issued amemorandum stating that no additional improve-ments were needed for WLCPs project, other thanthe construction of a waterline to the property onGreene Street. (Tr. Ex. 144 at p. 3.) A month later,in May 1998, the Citys water expert issued a secondmemorandum, this time stating that any exacer-bation of hydraulic deficiency from both WLCPs

project and Show Timbers Summerlinn Apartmentsproject could be solved by adding less than 100 feetof waterline. (Tr. Ex. 178 at p. 2.) That samememorandum went on to suggest that, dividedaccording to customer demand, the Summerlinn

Apartment project and WLPCs project would accountfor only 15 percent of the water demand and, thus,should be responsible for approximately 600 feetof the proposed Willamette Falls Drive waterline.(Tr. Ex. 178 at p. 2.) Notably, that conclusion didnot consider any differences in expected water

usage between Show Timbers 438-unit residentialSummerlinn Apartments and WLCPs commercialoffices. The uncontradicted evidence at trial estab-


16/169

8

lished that the impact from a large apartmentcomplex like Summerlinn Apartments would bealmost six or seven times higher than the impactfrom a corporate office park development like theWLCP project. Thus, although the City requiredWLCP to share the construction costs of 1,400 feet ofwaterline at a total cost to WLCP of $172,049 theCitys own experts had advised the City that theproject was not necessitated by any impact fromthe WLCP project, and the uncontradicted evidenceat trial further showed that the impact from the

commercial development of WLCPs property wassubstantially less than the impact from the residen-tial development of Show Timbers property.

Other Public Improvement Projects. In addi-tion to the construction of Phase II of the WillametteFalls Drive waterline, the City also conditioned theapproval of WLCPs development permit on theconstruction or the funding of numerous other off-sitepublic improvement projects. Among other things,the City required WLCP to partially fund a trafficstudy by the City on the nearby 10th Street corridor

to develop a long-term plan of needs for the 10thStreet corridor in anticipation of a full build-out of allproperties in the area by 2018. (App., infra, 27a-28a.)The study recommended the addition of two newtraffic signals, along with a sidewalk on the west sideof 10th Street, in view of the construction of theWLCP project and Summerlinn Apartments. (App.,infra, 31a.) The study concluded that [n]o additionalroadway work was necessary to accommodate theWLCP project. (App., infra, 31a.) The study furtherdetermined that WLCPs commercial project would

generate only 5.4 percent of the afternoon peak hour vehicles entering the 10th Street corridor with fulloccupancy of the surrounding properties in 2018.


17/169

9

(App., infra, 31a.) The study also determined thatWLCPs project would generate only 3.3 percent ofthe afternoon peak hour vehicles on the westboundI-205 ramps. (App., infra, 31a.)

Notwithstanding the conclusions of the study,the City ultimately required WLCP to complete allof the 10th Street improvements recommendedfor the future development of the area, including:(1) improvements to the westbound I-205 ramps and10th Street intersection; (2) additional street widen-ing; (3) construction of additional turn lanes; (4) storm

drain improvements; (5) installation of a bike path;(6) relocation of street lighting; (7) relocation of powerand telephone utilities; and (8) installation of newcurbs. (App., infra, 31a.) The total cost for all of the10th Street improvements that the City ultimatelydemanded from WLCP amounted to $726,225.48.(App., infra, 31a.) Because the City conditioned bothdevelopment projects on the completion of the 10thStreet improvements, WLCP and Show Timber againsplit the cost for those improvements independentlyof any direction from the City, with each party paying

$363,112.74. (App., infra, 31a-32a.)

The City also required WLCP to petition to vacateGreene Street and to construct a gravel path alongit as a condition to its development project. (App.,infra, 32a.) That project cost WLCP $14,319.(App., infra, 32a.) The gravel pathway was not animprovement needed for the office park because theCity does not require commercial developments tocontribute to its parks system. In addition, the Cityalso required WLCP to construct waterlines along

13th and Greene Streets, to make street improve-ments on Blankenship Road, and to make street,sewer, and storm improvements along 13th Street.


18/169

10

(App., infra, 32a.) Together, those projects cost WLCP$264,970. (App., infra, 32a.) As with the otherrequired improvements, the City offered no evidenceat trial showing that it attempted to determine theproportional impact of WLCPs project (as comparedto the impact of Show Timbers residential Summer-linn Apartments project) to justify the imposition ofthose conditions.

Finally, on top of demanding the completion ofthose physical on-site and off-site improvements, theCity also required WLCP to make cash payments of

$182,544 as part of its System Development Charges(SDC charges). (App., infra, 32a-33a.) The CitysSDC charges are charges that the City imposes torecover 100 percent of the cost of impacts by propertydevelopment. (App., infra, 32a.) The City acknowl-edged that it had required WLCP to pay more in cashand improvement projects than the City assigned toWLCP in SDC charges, but the City refused WLCPsrequest for cash reimbursement of its overpayments.(App., infra, 32a-33a.) Instead, the City paid WLCPin SDC certificates with a face value of only $384,450.

(App., infra, 32a-33a.) The SDC certificates may notbe exchanged for cash, and may only be used toprovide 50 percent of any system development creditsfor any project. Although SDC certificates may besold to other developers, they have very little market

value. (App.,infra, 33a.) WLCP ultimately sold itsunused SDC certificates at a 75 percent discount fora total of only $12,521. (App., infra, 33a.)

Project Completion. Because of the Citysdemand for numerous public improvement projects

beyond the ones initially contemplated by the partiesagreement, the projected deadline for the projectcompletion was reached without WLCP having


19/169

11

finished all of the off-site improvements that the Citydemanded. (App., infra, 33a.) WLCP had tenantspreparing to move into the new office space andasked the City to issue occupancy permits, but theCity refused. (App., infra, 33a.) The parties ulti-mately reached an agreement that the City wouldissue WLCP temporary occupancy permits for part ofits building if WLCP signed a limited release ofclaims relating to the 10th Street improvements.(App., infra, 33a.) The release expressly providedthat nothing in [the] release prevents [WLCP] from

filing any other type of action [unrelated to the 10thStreet improvements] or claim related to SDCs forclaims unrelated to the 10th Street corridor. (NinthCircuit Excerpt of Record 124.) The release providedthat the Oregon Department of Transportation(ODOT) would be the agency responsible for deter-mining whether WLCP had performed the 10thStreet improvements adequately, and that therelease was void if the City materially breached thatagreement. Subsequently, in WLCPs view, the Citybreached its agreement with WLCP by demanding

additional improvements to the 10th Street corridorand refusing to release WLCPs bond securing thatproject, even after ODOT approved of WLCPs per-formance of the 10th Street improvements andauthorized the release of its bond. (App., infra, 33a.)

B. Proceedings Below

State Court and Federal District CourtProceedings. In November 2001, WLCP initiatedthis case against the City in the Clackamas CountyCircuit Court for the State of Oregon. (App., infra,

34a.) The City removed the case to the United StatesDistrict Court for the District of Oregon, which pos-sessed federal question jurisdiction under 28 U.S.C.


20/169

12

1331. (App., infra, 34a.) In its amended federalcomplaint as in its state court complaint WLCPasserted that the City had effected uncompensatedtakings in violation of the Oregon Constitutionand the Fifth Amendment to the United StatesConstitution by requiring WLCP to constructand dedicate the off-site public improvement projectsas a condition for approval of WLCPs developmentpermit. (App., infra, 34a.) WLCP also asserted

various other claims, including additional state andfederal takings claims, an unjust enrichment claim,

and a claim for unconstitutional retaliation under theFirst Amendment to the United States Constitution.(App., infra, 34a.) For its part, the City responded byfiling various counterclaims for declaratory andinjunctive relief against WLCP. (App., infra, 34a-35a.)

The parties subsequently filed competing motionsfor summary judgment. (App., infra, 35a.) Thedistrict court granted summary judgment to the Cityon two of WLCPs claims, and WLCPs remainingclaims and the Citys counterclaims then were set for

a bench trial. The bench trial started on August 30,2004 and lasted nine days. (App., infra, 35a.)

District Court Decision. On July 15, 2005, thedistrict court issued oral rulings on its decisions fromthe trial. (App., infra, 1a-14a.) As to the Citys coun-terclaims against WLCP, the district court deniedall relief. (App., infra, 10a.) As to WLCPs claimsagainst the City, the district court granted relief onWLCPs claims that the City had effected an uncom-pensated taking of WLCPs property interests in the

intersection at Greene and 13th Streets in violation ofthe Oregon Constitution and the Fifth Amendment.(App., infra, 7a-8a.) The district court also granted


21/169

13

relief on WLCPs First Amendment retaliation claim.(App., infra, 9a.) As to WLCPs state and federaltakings claims for the Citys imposition of thenumerous off-site public improvement projects as acondition for approval of WLCPs developmentpermit, however, the district court denied relief toWLCP based on its conclusion that the claims wereunripe because WLCP had not availed itself of localremedies. (App., infra, 4a-5a.) The district court alsoconcluded that WLCPs claims were waived to theextent that they were related to the 10th Street

improvement projects because of the limited releasethat WLCP entered with the City to obtain itstemporary occupancy permits. (App., infra, 4a.)Finally, the district court denied WLCPs claim forunjust enrichment. (App., infra, 6a.)

Initial Ninth Circuit Decision. After unsuccess-fully moving for reconsideration, WLCP timelyappealed to the Ninth Circuit, challenging thedistrict courts denial of WLCPs state and federaltakings claims relating to the off-site public improve-ment projects. For its part, the City filed a cross-

appeal to the Ninth Circuit, challenging the districtcourts rulings in favor of WLCP and the denial of itscounterclaims.

After briefing and oral argument on the appeals,the Ninth Circuit concluded that WLCPs takingsclaims depended on the answers to some unsettledissues of Oregon land-use law. (App., infra, 24a.)Based on that conclusion, the Ninth Circuit issued awritten opinion certifying three questions to theOregon Supreme Court under Or. Rev. Stat. 28.200

et seq. (App., infra, 22a-51a.) The two certified ques-tions relevant to this appeal were:


22/169

14

Must a landowner alleging that a condition ofdevelopment amounts to an exaction or physicaltaking exhaust available local remedies beforebringing his [or her] claim of inverse condemna-tion in an Oregon state court?

Can a condition of development that requires alandowner to improve off-site public property inwhich the landowner has no property interestconstitute an exaction?

(App., infra, 50a.) In certifying those questions, the

Ninth Circuit opined that the answers to those ques-tions largely dictate the justiciability of this matterand that it required further guidance on Oregon law.(App., infra, 36a.)

Oregon Supreme Court Decision. The OregonSupreme Court accepted the Ninth Circuits certifica-tion. (App., infra, 52a-117a.) After slightly rephras-ing the first certified question to add the assumptionthat the required off-site improvements were notroughly proportional to the impact of the develop-ment,1

1 The Oregon Supreme Court rephrased the Ninth Circuits

first question to state:

the Oregon Supreme Court instructed that a

landowner must pursue local administrative reme-dies of valid claims, but need not appeal decisions ofthe local government to the Oregon Land Use Board

Whether a plaintiff bringing an inverse condemnationaction alleging that a city imposed, as a condition ofdevelopment, a requirement that plaintiff construct off-siteimprovements at a cost not roughly proportional to theimpacts of the development is required to pursue

administrative remedies before filing that claim in statecourt?

(App., infra, 67a.)


23/169

15

of Appeals (LUBA). (App., infra, 73a-75a.) Specifi-cally, the Oregon Supreme Court held:

Accordingly, we answer the Ninth Circuits firstquestion as follows: Assuming that Oregon lawpermits an inverse condemnation action pre-mised on allegations that a condition of develop-ment requires a landowner to construct off-siteimprovements at a cost not roughly proportionalto the impacts of development, Oregon lawrequires the landowner to pursue available localadministrative remedies, but not to appeal to

LUBA, as a prerequisite to bringing that actionin state court.

(App., infra, 74a-75a.)

In so answering the Ninth Circuits first question,the Oregon Supreme Court expressly conditioned itsanswer on the assumption that WLCP had viablestate takings claims against the City that WLCPdid not pursue before local administrative bodies.(App., infra, 64a.) In stressing the importance of thatassumption, the Oregon Supreme Court explained

that the viability of the claims mattered becausethe state-law exhaustion requirement applied onlyto valid state-law claims. Specifically, the OregonSupreme Court explained:

The district courts ruling that plaintiff wasrequired to pursue local remedies before filing itsclaims for inverse condemnation presumed the

viability of those claims. If state law does notrecognize those claims, then plaintiffs failure totake administrative steps preliminary to their

assertion cannot serve as a basis for entry ofjudgment against plaintiff.


24/169

16

(App., infra, 64a (emphasis added).) The OregonSupreme Court thus made clear that any failure byWLCP to exhaust local administrative remedies wasirrelevant if WLCP did not have a state takings claimfor the public improvements that the City requiredWLCP to construct. (App., infra, 64a.)

After answering that procedural question, theOregon Supreme Court then turned to the NinthCircuits second question and concluded that WLCPin fact did not have a viable state takings claim basedon the Citys imposition of the numerous off-site

public improvement projects as a condition for ap-proval of WLCPs development permit. (App., infra,75a-100a.) Specifically, after slightly rephrasing theNinth Circuits second certified question,2

No, a property owner that alleges that a city hasrequired it to construct off-site improvementsat a cost that is not roughly proportional tothe impact of the development, as opposed todedicating an interest in real property such as

granting an easement, does not allege a takingthat gives rise to a claim for just compensation.

the OregonSupreme Court answered the question as follows:

(App., infra, 100a.) Notably, in answering this ques-tion, the majority of the Oregon Supreme Courtpurported to go beyond merely interpreting Oregonlaw, concluding that it was somehow required toaddress whether WLCP possessed a viable claim for

just compensation under the Fifth Amendment tothe United States Constitution. (App., infra, 76a.)

2 The Oregon Supreme Court again narrowed the secondquestion certified by the Ninth Circuit in order to more specifi-cally address the type of exaction alleged here, but did notfundamentally alter the questions import. (App., infra, 67a.)


25/169

17

Relying largely on this Courts decision in Lingle v.Chevron USA Inc., 544 U.S. 528 (2005), the majorityconcluded that this Court had somehow limited itsprior holdings in Nollan and Dolan and that theTakings Clause of the Fifth Amendment provided noremedy for the compelled dedication of off-site im-provements complained of by WLCP. (App., infra,76a-91a.) Two judges dissented from the opinion onthat ground and pointed out that the Ninth Circuithad sought only an opinion from the Oregon SupremeCourt on issues of state law. (App., infra, 110a-117a.)

Second Ninth Circuit Decision. After theOregon Supreme Court filed its answers to the NinthCircuits certified questions, the Ninth Circuit issueda second opinion on the merits on the claims onappeal. (App., infra, 118a-125a.) On WLCPs federaltakings claim for the Citys condition of the off-siteimprovements, the Ninth Circuit first expresslyrecognized that the viability of WLCPs claim was aquestion of federal law not Oregon state law andthat it had a duty to make an independent determi-nation of the claim. (App., infra, 120a.) The Ninth

Circuit then determined that it did not need todetermine whether WLCPs federal takings claimwas ripe because that claim was not cognizable underthe Takings Clause of the Fifth Amendment in anyevent. (App., infra, 121a.) In reaching that conclusion,the Ninth Circuit opined, citingLingle, that this Courthas not extended Nollan and Dolan beyond situa-tions in which the government requires a dedicationof private real property. (App., infra, 121a.) Be-cause the Citys required off-site public improve-ments did not involve the transfer of real property,

the Ninth Circuit concluded that Nollans essentialnexus and Dolans rough proportionality require-ments did not apply and that WLCP failed to allege


26/169

18

a cognizable federal Fifth Amendment taking.(App., infra, 121a.)

REASONS FOR GRANTING THE PETITION

Exactions are land-use decisions conditioningapproval of development on the dedication of prop-erty to public use. Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687, 702 (1999). Nothing isinherently bad about exactions. Indeed, exactionshave the potential to benefit all by providing govern-ment with a means of escaping the narrow choice

between denying a plaintiff his [or her] project permitaltogether or subordinating legitimate public inter-ests to the plaintiffs development plans. Ehrlich v.City of Culver City, 911 P.2d 429, 449 (Cal. 1996). Onthe other hand, courts and commentators generallyagree that governments ability to impose exactionsas a condition of development approval must be keptwithin limits to avoid the inherent and heightenedrisk that local government will manipulate the policepower to impose conditions unrelated to legitimateland use regulatory ends, thereby avoiding what

would otherwise be an obligation to pay just compen-sation. Id. at 439 (emphasis in original); see alsoDaniel L. Siegel,Exactions After Lingle: How Basing

Nollan and Dolan on the Unconstitutional Conditions Doctrine Limits Their Scope, 28 Stan. Envtl. L. J.577, 581 (2009) (noting consensus by most, if not all,scholars that governments ability to impose exac-tions should be bounded). The question presentedby this case is the type of exactions that trigger theprotections of the Takings Clause under the Fifth

Amendment and the requirements of this Courts

decisions inNollan andDolan.


27/169

19

A. This Court Has Not Defined the ExactionsThat Trigger the Protections of the Fifth Amendment and the Requirements ofNollan and Dolan

In an effort to set limits on governments ability toimpose exactions as a condition of developmentapproval, this Court inNollan andDolan establishedstandards for determining the constitutionality ofsuch property exactions. Taken together, theNollanand Dolan decisions stand for the rule that thegovernment may not require a person to give up a

constitutional righthere the right to receive justcompensation when private property is taken for apublic usein exchange for a discretionary benefitconferred by the government unless there is anessential nexus between the condition and a legiti-mate state interest and unless the condition isroughly proportional to the impact of the proposeddevelopment. Dolan, 512 U.S. at 391; see alsoNol-lan, 483 U.S. at 837.

In Nollan, the property owners application for a

development permit was granted on the conditionthat they allow the public an easement to cross theiroceanfront property. Id. at 828. In consideringwhether that condition constituted an unconstitu-tional taking, this Court observed that, if thegovernment had simply required the property ownerto convey an easement in order to increase publicaccess to the beach, rather than conditioning theirpermit to rebuild their house on their agreeing todo so, we have no doubt there would have been ataking. Id. at 831. After making that observation,

the Court then considered whether requiring [theeasement] to be conveyed as a condition for issuing aland-use permit alters the outcome. Id. at 834. The


28/169

20

Court concluded that such a requirement also consti-tuted a taking because, under the circumstancespresented, there was a lack of nexus between thecondition and any governmental interest that wouldhave permitted the government to deny the proposeddevelopment. Id. at 837. In so concluding, the Courtexplained that the imposed condition was not a validregulation of land use but an out-and-out plan ofextortion, pointing out that the Takings Clause ofthe Fifth Amendment prohibited governmental enti-ties from leveraging of the police power to obtain

private property for public use without payment ofcompensation. Id. at 837 and n.5 (citations omitted).

Following Nollan, this Court further clarifiedthe standards for evaluating the constitutionality ofexactions for discretionary development permits inits decision in Dolan. In Dolan, the property ownersought a permit application to redevelop her prop-erty. Dolan, 512 U.S. at 379. The city imposedseveral conditions on a grant of the applicationincluding the dedication of sufficient open land for agreenway, as well as a pedestrian and bicycle path.

Id. at 379-80. In evaluating the constitutionality ofthese conditions under the Fifth Amendment, theCourt first noted that the conditions imposed on theproperty owner were not legislative determinationsclassifying entire areas of the city or limitations onthe use petitioner might make of her own parcel, butwere rather imposed as part of an adjudicative deci-sion requiring that she deed portions of the prop-erty to the city. Id. at 385. UnlikeNollan, the Courtconcluded that there was an essential nexus betweenthe conditions imposed by the city and its legitimate

governmental interests. Id. at 387-88. Notwith-standing that essential nexus, however, the Courtdetermined that the conditions lacked a sufficient


29/169

21

relationship to the impact of the proposed develop-ment. Without such a relationship, the Court observedthat such conditions could merely be used as anexcuse for taking property simply because at thatparticular moment the landowner is asking the cityfor some license or permit. Id. at 390 (citationsomitted). Therefore, to pass constitutional muster,the Court held that exactions must be roughlyproportional to the projected impact of thedevelopment, explaining:

We think a term such as rough proportionality

best encapsulates what we hold to be therequirement of the Fifth Amendment. No precisemathematical calculation is required, but the citymust make some sort of individualized determi-nation that the required dedication is relatedboth in nature and extent to the impact of theproposed development.

Id. at 391.

The property exactions at issue in Nollan andDolan were exactions involving the dedication of pri-

vate real property for public use. The questionpresented squarely in this case is whether the consti-tutional protections ofNollan andDolan are reservedfor only those circumstances where the governmentexacts some identifiable interest in real property as acondition for approval of a discretionary developmentpermit, or whether those protections apply morebroadly to cover circumstances where the governmentas part of an adjudicative process conditions approvalof a discretionary development permit on the require-ment that a property owner construct and deliver

tangible physical improvements to public land or onthe payment of money for the same purposes. Awide, irreconcilable, and deepening split has devel-


30/169

22

oped among state courts and lower federal courtsregarding this important constitutional question.Because only this Court can resolve the conflictamong the courts and provide guidance on the typesof property exactions subject to theNollan andDolanrequirements, this Court should grant this petitionfor a writ of certiorari.

B. The Ninth Circuits Decision is in DirectConflict with Decisions of Other Courts

In sharp contrast to decisions of other courts, the

Ninth Circuit in this case adopted a narrow view ofthe types of property exactions that may constitutecompensable takings under the Fifth Amendment,significantly limiting the reach of this Courts deci-sions in Nollan and Dolan. According to the NinthCircuit, the essential nexus and rough proportio-nality requirements for property exactions under

Nollan and Dolan apply only in situations in whichthe government requires a dedication of private realproperty. (App., infra, 121a.) Based on that view,the Ninth Circuit concluded that petitioner WLCP

failed to allege a cognizable takings claim under theFifth Amendment because the property exactions atissue in this case did not involve the dedication ofreal property. Accepting that WLCP was required toconstruct several off-site public improvements withits personal property (money, piping, sand and graveletc.) as a condition for the Citys discretionaryapproval of WLCPs development permit, the NinthCircuit concluded that the imposition of such acondition did not trigger the protection of the Fifth

Amendment even if the condition was not roughly

proportional to the impact of WLCPs proposed devel-opment. (App., infra, 121a.)


31/169

23

The Ninth Circuits conclusion directly conflictswith decisions of other courts, including the Cali-fornia and Texas Supreme Courts. See Sup. Ct. R.10(a) (compelling reason exists for the grant of apetition for writ of certiorari where a United Statescourt of appeals has decided an important federalquestion in a way that conflicts with a decision of astate court of last resort). On remand from thisCourt requiring a reexamination of the case underthe then-newly-decided Dolan decision, the SupremeCourt of California held in Ehrlich, 911 P.2d 429,

that the principles ofNollan and Dolan apply todevelopment permits that exact a fee as a conditionof issuance, rather than, as in both Nollan and

Dolan, the possessory dedication of real property.(Emphasis in original.)

InEhrlich, the city imposed a monetary exaction of$280,000 by requiring the landowner to build publicrecreational facilities as a condition of development.In imposing that requirement, the city contendedthat Dolans heightened takings clause standardapplies only to cases in which the local land use

authority requires the developer to dedicate realproperty to public use as a condition of permitapproval. Id. at 432 (emphasis in original). TheCalifornia Supreme Court unanimously disagreedand held that Dolan was not so limited. SeeSan

Remo Hotel v. City and County of San Francisco, 41P.3d 87, 102 (Cal. 2002) (Though the members ofthis court disagreed on various parts of the analysis,we unanimously held that this ad hoc monetaryexaction was subject toNollan/Dolan scrutiny.) The

Ehrlich court stated that it matters little whether

the local land use permit authority demands theactual conveyance of property or the payment of amonetary exaction. Ehrlich, 911 P.2d at 444 (em-


32/169

24

phasis in original). Based on that view, the courtheld [w]hen such exactions are imposedas in thiscaseneither generally or ministerially, but on anindividual and discretionary basis, we conclude thatthe heightened standard of judicial scrutiny ofNollanand Dolan is triggered. Id. The courts conclusionwas based on its view that [o]ne of the centralpromises of the takings clause is that truly publicburdens will be publicly borne and that the risk oftoo elastic or diluted a takings standardthe vice ofdistributive injustice in the allocation of civic costs

is heightened in either case. Id.In Flower Mound, Texas v. Stafford Estate Ltd.

Partnerships, 135 S.W.3d 620 (Tex. 2004), the TexasSupreme Court followed Ehrlich and took the same

view. In Flower Mound, the Texas Supreme Courtheld that the citys requirement that the landownerrebuild an abutting road as a condition of develop-ment was subject to Dolan. In doing so, the courtexplained that [f]or purposes of determining whetheran exaction as a condition of government approvalof development is a compensable taking, we see no

important distinction between a dedication of prop-erty to the public and a requirement that propertyalready owned by the public be improved. Id. at639-40. The court specifically rejected the assertionthat Dolan was limited to forced dedications of realproperty. Id. at 636.

Other state courts have followed the lead of theEhrlich and Flower Mound decisions and similarlyhave applied the requirements ofNollan and Dolanto exactions not involving the dedication of real prop-

erty. See, e.g., St. Johns River Water Mgt. Dist. v.Koontz, 5 So. 3d 8, 12-13 (Fla. Dist. Ct. App. 2009)(requirement that property owner improve public


33/169

25

property was covered by Dolan); Toll Bros., Inc. v.Board of Chosen Freeholders of Burlington, 944 A.2d1, 13 n.2 (N.J. 2008) (New Jerseys application ofa strict nexus test between the required off-siteimprovements and the impact of the development isconsistent with theDolan test);Benchmark Land Co.v. City of Battle Ground, 972 P.2d 944, 95-51 (Wash.Ct. App. 2000) (Dolans rough proportionality testapplies to requirement imposed on landowner toimprove an adjoining street), affd, 49 P.3d 860(2002) (affirmed on sub-constitutional grounds);Home

Builders Assn of Dayton & the Miami Valley v. Cityof Beavercreek, 729 N.E.2d 349, 356 (Ohio 2000) (Dolanapplied to impact fees);Northern Illinois Home Build-

ers Assn v. County of DuPage, 649 N.E.2d 384, 388-89 (Ill. 1995) (citingDolan, court applies a heightenednexus standard to countys traffic impact fees).

Arrayed against these cases and their holdingsthatNollan andDolan are not limited to exactions ofinterests in real property are the Ninth Circuitsholding below and the Oregon Supreme Courts deci-sion on certification in this case.3

3 While other courts have declined to applyDolan to exactions

which do not involve the dedication of real property, thesecases have involved legislatively-enacted impact fees and havedepended on the distinction between a broadly applicable legis-lative enactment and an ad hoc adjudicatory determination suchas the one made by the City with regards to WLCPs propertyin this case. See, e.g., Krupp v. Breckenridge Sanitation Dist.,19 P.3d 687, 698 (Colo. 2001) (while holding that a legislativelycreated sanitation fee was not subject to Dolan, the ColoradoSupreme Court recognized that application of the Dolan testmight still be appropriate in cases where a permitting author-

ity, through a specific, discretionary adjudicative determination,conditions development on the exaction of private property forpublic use); Home Builders Assn of Cent. Ariz. v. City ofScottsdale, 930 P.2d 993, 1000 (Ariz. 1997) (when exaction is

In its decision, the


34/169

26

Oregon Supreme Court likened the construction anddelivery of off-site improvements to the payment ofmoney and stated:

In the absence of a Supreme Court ruling to thecontrary, we conclude that a governmentsrequirement that a property owner undertake amonetary obligation that is not roughly propor-tional to the impacts of its development does notconstitute an unconstitutional condition under

Nollan/Dolan or a taking under the FifthAmendment, nor does it require payment of just

compensation.

(App., infra, 89a.) For its part, the Ninth Circuit alsoexpressly relied on the absence of any clear holdingfrom this Court that the Nollan and Dolan require-ments had any application outside of the compelleddedication of an interest in real property, stating thatthe Supreme Court has not extended Nollan and

Dolan beyond situations in which the governmentrequires dedication of private real property. (App.,infra, 121a.)

Each courts reliance on the lack of any firm sup-port from this Court for extending Nollan andDolanbeyond exactions of real property underscores theneed for a definitive resolution of this issue, an issuewhich is presented squarely by this case. Petitioner

imposed pursuant to a generally applicable legislative decisionas opposed to an adjudicative decision, risk of improperleveraging of landowner is not present and hence Dolan does

not apply); Waters Landing Ltd. Pship v. Montgomery County,650 A.2d 712, 724 (Md. 1994) (because development impact taxwas imposed by legislative enactment, not by adjudication, itwas not subject toDolans requirements).


35/169

27

WLCP has contended throughout this litigation that,consistent with the California and Texas SupremeCourts, the citys requirement that it use asphalt,concrete, bedding material, pipe and other personalproperty to construct public improvements cannot bedistinguished from the requirements imposed by thegovernments and considered by the courts in NollanandDolan. (App., infra, 83a.) As the California andTexas Supreme Courts have concluded, any coercedtransfer of property, whether real or personal, mustmeet theNollan andDolan standard. Indeed, even if

the construction and delivery of off-site improve-ments may appropriately be considered the merepayment of money, the Nollan and Dolan analysisapplies when the government uses its regulatorypower in an adjudicative proceeding to coerce suchpayment. See, e.g., Brown v. Legal Foundation, 538U.S. 216, 234 (2003) (money is private property forpurposes of the Fifth Amendments proscriptionagainst governmental taking of private propertywithout just compensation); Phillips v. Washington

Legal Foundation, 524 U.S. 156, 172 (1998) (interest

generated on IOLTA account is private property ofthe owner of the principal for takings purposes).For its part, the City has argued the opposite,asserting thatNollan andDolan have no applicationunless the government requires the dedication of aninterest in real property. (App., infra, 84a.)

Given these opposing views, the meaning and pur-pose of a major element of this Courts takings

jurisprudence under the Fifth Amendment is directlyat issue in this case. Given the important andsignificant national ramifications in the areas of

land use regulation and property rights, review iswarranted. See, e.g., Mark W. Cordes, Legal Limitson Development Exactions: Responding to Nollan


36/169

28

and Dolan, 15 N. Ill. U. L. Rev. 513, 516 (1995)([f]aced with shrinking budgets, local governmentshave increasingly relied on development exactionsas a funding source to offset the perceived costs ofdevelopment).

C. The Conflict Among State Courts andLower Federal Courts Has BeenEngendered by Confusion About ThisCourts Decision in Lingle

In concluding thatNolan andDolan applied to only

compelled dedication of interests in real property,both the Ninth Circuit and the Oregon SupremeCourt relied heavily on this Courts decision in Lin-

gle. (App., infra, 76a-81a, 121a.) In doing so, how-ever, neither court offered a cogent explanation ofhow or whyLingle limits the application of the roughproportionality test ofNollan/Dolan. In fact, nothingin Lingle supports the notion that Nollan andDolanare somehow inapplicable simply because the gov-ernment, as part of an adjudicative process, demandsonly personal property or money as a condition of

development approval rather than an interest in realproperty.

The fundamental federal constitutional issue inthis case is whether government can, through anindividualized ad hoc determination, compel a prop-erty owner to construct and deliver to it tangiblephysical improvements for public benefit withoutdemonstrating that the requirements are roughlyproportional to the impact of the property ownersdevelopment. Lingle did not involve such a claim.Rather,Lingle involved an attempt under the TakingsClause of the Fifth Amendment to strike down a statestatute imposing a cap on the rents chargeable by anoil company to its lessees on the grounds that the cap


37/169

29

did not substantially advance the states assertedinterest in enacting the law. Lingle, 544 U.S. at 532.

In reaching the conclusion that a takings claimcannot be supported solely upon such grounds, thisCourt summarized its takings jurisprudence but wascareful not to limit Nollan and Dolan in any way.Thus, after first summarizing the paradigmatictaking involving a direct government appropriationor physical invasion of private property, this Courtdiscussed three situations where government regula-tions could constitute a taking under the Fifth

Amendment: (1) where a regulation requires anowner to suffer a permanent physical invasion of herproperty, Loretto v. Teleprompter Manhattan CATVCorp., 458 U.S. 419 (1982); (2) where a regulationcompletely denies an owner all economically benefi-cial use of her property, Lucas v. South CarolinaCoastal Council, 505 U.S. 1003, 1019 (1992) (internalquotation marks omitted); and (3) where a regulationimposes economic impacts under the factorsidentified in Penn Central Transp. Co. v. New YorkCity, 438 U.S. 103, 124 (1978), the most important of

which is interference with distinct investment-backed expectations. Lingle, 544 U.S. at 537-39(internal quotation marks omitted). Following thissummary, this Court held that the substantiallyadvances formula previously recognized in Agins v.City of Tiburon, 447 U.S. 255 (1980), was not a validtakings test, unlike the three regulatory takingstests discussed above. Lingle, 544 U.S. at 542, 545.

After this holding, the Court inLingle discussedNollan and Dolan in dictum not to question the

validity of those cases or to limit their reach, but tomake clear that the Courts decision should notbe read to disturb these precedents. Id. at 548.


38/169

30

Emphasizing as it had previously done inDolan thatthese cases involve a special application of thedoctrine of unconstitutional conditions, this CourtdescribedNollan andDolan as involving dedicationsof property so onerous that, outside the exactionscontext, they would be deemed per se physicaltakings. Id. at 547.

This Courts use of the word property, and not thewords real property, is telling. Nothing in theCourts decision implies that the doctrine of uncon-stitutional exactions as applied inNollan and Dolan

is inapplicable where the government makes anadjudicative decision to require as a condition ofdevelopment approval a non-proportional transfer ofpersonal property or money as opposed to an interestin real property. In fact, it is highly unlikely thatapplication of the doctrine of unconstitutional condi-tions depends on the character of the propertyacquired by the government since the doctrinesorigin is traceable to cases which did not involve therelinquishment of property rights. SeeDolan, 544U.S. at 385 (in applying the well-settled doctrine of

unconstitutional conditions, the Court citedPerry v.Sindermann, 408 U.S. 593 (1972), and Pickering v. Board of Education, 391 U.S. 563 (1968), cases inwhich the involved discretionary governmental bene-fit, the right to continued public employment, wasconditioned upon the relinquishment of free speechrights, not property rights).4

4 In fact, to argue that the government may condition a dis-

cretionary benefit on the relinquishment of the right to be free

from an uncompensated taking of personal property unfairlyderogates the Takings Clause. See Dolan, 512 U.S. at 392 (thisCourt found no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First


39/169

31

Despite the lack of limiting language in Lingleand the fact that the doctrine of unconstitutionalconditions is not property-based, there has been con-siderable speculation among legal commentatorsthat the dictum in Lingle somehow limits takingsclaims under Nollan and Dolan. See, e.g., TimothyM. Mulvaney, The Remnants of Exaction Takings,33 Environs Envtl. L & Poly J. 189, 212-14 (2010)(describing discussion ofNollan and Dolan in Lingleas insightful dicta that could be read as limitingthe application of these cases to all but a narrow set

of exactions involving public, physical invasions);Daniel L. Siegel,Exactions After Lingle: How BasingNollan and Dolan on the Unconstitutional Conditions Doctrine Limits Their Scope, 28 Stan. Envtl. L. J.577, 580 (2009) (positing theory that Nollan and

Dolan can only apply to permit conditions that dedi-cate real property to the public). In contrast, othercommentators argue thatNollan and Dolan must begiven an expansive reading based on whether theactual exaction in question would constitute a takingoutside the development context. See, e.g., Jane C.

Needleman, Exactions: Exploring Exactly When Nol-lan and Dolan Should Be Triggered, 28 CardozoL. Rev. 1563, 1576 (2006); see also Mark Fenster,Takings Formalism and Regulatory Formulas:

Exactions and the Consequences of Clarity, 92 Calif.L. Rev. 609, 637 (2004) (suggesting that this Courtsremand ofEhrlich may have settled the issue infavor of extendingNolan andDolan to nonpossessoryexactions). This conflict among academics furtherhighlights the need for this Court to determine theproper scope and reach ofNollan andDolan.

Amendment or the Fourth Amendment, should be relegated tothe status of a poor relation).


40/169

32

CONCLUSIONThis case directly poses the question whether, as a

matter of federal constitutional law, the doctrineof unconstitutional conditions as recognized in

Nollan/Dolan and reemphasized in Lingle, preventsthe City from demanding that WLCP provide prop-erty for the public good, whether real property,personal property, or even money, in exchange for thediscretionary approval of WLCPs developmentapplication where the conditions demanded are notroughly proportional to the impacts of its proposed

development. The Supreme Courts of California andTexas answer this question affirmatively, finding nogood reason why exactions which require the dedica-tion of real property interests should be treatedany differently than exactions which require theconstruction and delivery of personal property oreven exactions which only require the payment ofmoney. Taking the exact opposite view, the SupremeCourt of Oregon and the Ninth Circuit Court of

Appeals perceive an important distinction betweenthe compelled dedications of interests in real prop-

erty as opposed to compelled dedications of personalproperty.

Petitioner contends that this distinction makeslittle sense. Just as the government could not, in theabsence of a development application, compel a prop-erty owner to surrender an easement across his orher private property for a public purpose without thepayment of just compensation, the government maynot compel a property owner to surrender for a publicpurpose his or her automobile, the contents of his or

her bank account, or even intangible property rightswithout payment of just compensation. See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003


41/169

33

(1984) (property protected by the Takings Clauseof the Fifth Amendment protects land, personalproperty such as tangible goods and even intangibleproperty such as trade secrets). To the extent thatsuch demands are made by the government pursuantto an ad hoc individualized determination regardingan application to develop real property, the resultmust be the same regardless of whether the exactionrequires a transfer of real property as in Nollanand Dolan or a transfer of personal property asin this case. This Court should grant the petition

for writ of certiorari to address this importantconstitutional issue.

Respectfully submitted,

MICHAEL T.GARONECounsel of Record

D.JOE WILLISSARA KOBAKSCHWABE,WILLIAMSON

&WYATT, P.C.1211 SW Fifth Ave.Suites 1600-1900Portland, OR 97204(503) 222-9981mgarone@schwabe.com

Counsel for Petitioner


42/169

APPENDIX


43/169

1a

APPENDIX A

[1] IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF OREGON

No. CV-01-1787-AS

WEST LINN CORPORATE PARK, LLC,Plaintiff,

vs.

CITY OF WEST LINN,BORIS PIATSKI andDOE DEFENDANTS 1 THROUGH 10,

Defendants.

July 15, 2005Portland, Oregon

TRANSCRIPT OF PROCEEDINGS BEFORE THEHONORABLE DONALD C. ASHMANSKAS

UNITED STATES DISTRICT COURTMAGISTRATE


44/169

2a

[2] APPEARANCESFOR THE PLAINTIFF:

Mr. Donald Joe WillisMs. Jill S. Gelineau.Schwabe Williamson & Wyatt, P.C.1211 S.W. Fifth Avenue, Suite 1600Portland, OR 97204

FOR THE DEFENDANT:

Mr. Robert E. Franz, Jr.Law Office of Robert Franz, Jr.P.O. Box 62Springfield, OR 97477

Mr. Stephen. F. CrewRamis Crew Corrigan & Bachrach LLP1727 N.W. Hoyt StreetPortland, OR 97209

COURT REPORTER:

Bonita J. Alexander, CSR, RMR, CRRUnited States District Courthouse

1000 S.W. Third Ave., Room 301Portland, OR 97204(503) 326-8188


45/169

3a

[3] (PROCEEDINGS)THE COURT: Good afternoon, all. For the record,

Ill identify those who are present in this matter,which is a rendering of the final decision in thematter of West Linn Development CorporationWest Linn Corporate Park, LLC, is probably moreaccurate, versus the City of West Linn, Boris Piatskiand Doe defendants one through 10. The file numberis CV-1-1787-AS.

And in the courtroom we have Mr. Joe Willis

and Jill Gelineau, Tina Granados, representing theplaintiffs.

MR. WILLIS: Good afternoon, Your Honor.

MS. GELINEAU: Good afternoon, Judge.

THE COURT: Then we haveand also their client,Mr. Kelley, is present.

And then we have Mr. Robert Franz and the CityAttorneys Office, Mr. Stephen Crew.

Mr. Crew, are you the actual city attorney or is Mr.

Ramis?MR. CREW: Mr. Ramis is the actual city attorney.

THE COURT: And I believe, if Im not mistaken,we have Mr. Piatski in the courtroom as well.

Ill not go into further apologies. I must confess Imembarrassed by having to do this, but if I dont do itthis way, its going to exceed a civil period of time forreasons that I have no control over.

[4] What Ive done is, Ive had the luxury, if nothing

else, of reviewing all my notes. Ive gone throughthe legal memorandums that have been filed, thesummary judgments and so forth, the two that were


46/169

4a

issued. Ive gone through the proposed findings ofboth sides. Ive also looked at a variety of cases thathave been cited for a variety of issues. No one will behappy, probably, with the final result.

So let me start now. First of all, Ill deal with therelease.

As a preliminary matter, the release executedbetween the parties I find to be valid. It applies to allclaims in existence at the time it was executed, asreflected in the draft complaint that accompanied it,

as relevant to condition No. 5, which required im-provements on the 10th Streetor to the 10th Streetcorridor. I agree defendant is entitled to judgment onthe following claims as they apply to the 10th Streetcorridor improvements: the federal and state takingsclaims and the unjust enrichment claim.

With respect to the first claim for relief, the inversecondemnation under Article 1, Section 18 of theOregon Constitution, plaintiff contends that off-siteimprovements, that the off-site improvements it wasrequired to construct as conditions of approval for the

West Linn [5] Corporate Park were not roughly pro-portional to the impact of plaintiffs development andconsequently constituted a taking of plaintiffs prop-erty without just compensation.

I find first that Renaissance Development Corpora-tion applied for and obtained development approvalof what became the West Linn Corporate Park.The approval contained conditions of approval thatrequired Renaissance to construct various off-siteimprovements.

Two, I find that Renaissance could have appealedthe conditions of approval to the land use hearingsofficer of the City of West Linn, and after that


47/169

5a

Renaissance could have appealed to the West LinnCity Council and then to the Land Use Board ofAppeals, also known as LUBA. Renaissance did notappeal the conditions of approval. After purchasingthe property, plaintiff did file a request for anamendment to condition No. 5, seeking to allow occu-pancy prior to the completion of the 10th Street im-provements, but that request was withdrawn beforeany decision was made by the City.

Plaintiff completed the development in compliancewith the conditions imposed by the City and leased

space in the buildings before initiating the presentlawsuit.

I conclude with respect to the legal issues thatplaintiffs failure to appeal the conditions of approval,seek a variance or otherwise utilize available admin-istrative remedies bars its claims for inverse [6]condemnation under the Oregon Constitution. TheOregon Supreme Court has stated that if a means ofrelief from the alleged confiscatory restraint remainsavailable, the property has not been taken, citing

Suess BuildersIm citing Suess Builders v. City ofBeaverton, 294 Or. 254.

Therefore, because the plaintiff failed to pursueavailable administrative remedies, its claim is notyet ripe, and defendant is entitled to judgment in itsfavor on plaintiffs state law takings claim.

With respect to the second claim for relief, which isthe inverse condemnation under the United StatesConstitution, based on the same factual allegationsas the first claim, plaintiff also seeks compensation

for a taking under the federal constitution.


48/169

6a

The findings of fact under the first claim for reliefare incorporated as relevant to the second claim forrelief.

My conclusions of law are plaintiffs federal takingclaim is not ripe under the second prong ofWilliam-son Planning Commission v. Hamilton Bank, 473U.S. 172, which requires the plaintiff to seek justcompensation from the state before bringing a federalaction.

Plaintiffs failure to pursue remedies available

under state law bars its federal takings claim and,consequently, defendant is entitled to judgment in itsfavor [7] on plaintiffs claim under the United StatesConstitution. Pascoag Reservoir and Dam v. Rhode

Island, 337 F.3d 87, and Gamble v. Eau Claire County,5 F.3d 285.

On the third claim for relief, the unjust enrich-ment, plaintiffs third claim alleges that the Citywas unjustly enriched by the construction of the pub-lic improvements and by the issuance of systemdevelopment credits that are worth less than their

face value.The findings of fact that Ive made with respect

to the first and second claims are incorporated asrelevant to this third claim.

In conclusion, I find that plaintiff must havepreviously exhausted its legal remedies to maintain aclaim for unjust enrichment. I cite L.S. HenricksenConstruction v. Shea, 155 Or. App. 156, and Tum-A-

Lum Lumber v. Patrick, 95 Or. App. 719.

Equitable jurisdiction is not proper if there is anadequate remedy at law, and I citeJohnson v. Steen,281 Or. 361.


49/169

7a

Finally, plaintiff has failed to exhaust the legalremedies for compensation for the public improve-ments it was required to make, as set forth in theconditions of approval. Consequently, it cannot main-tain a claim for unjust enrichment and defendant isentitled to judgment in its favor on the equitableclaim.

[8] On the fourth and fifth claims for relief, theinverse condemnation resulting from the vacation ofGreene Street, I find as a condition of development,the City required both the plaintiff and neighboring

property owner, Show Timber, to vacate a portion ofGreene Street.

A legal of description of the area to be vacated pre-pared by City engineersno, prepared by engineersemployed by Show Timber excepted the intersectionof Greene and 13th Streets to allow access through on13th Street. This area, the disputed intersection, is30 by 20 feet in area.

The City planner would not accept the descriptionas prepared and indicated over the engineers objec-

tions that the intersection of Greene and 13th Streetswould also need to be vacated. Thus, in contrast tothe other conditions of approval, plaintiff did object tothe requirement that an additional legal descriptionbe prepared to include the disputed intersection.

The engineers prepared a revised legal descriptionincluding the disputed intersection, and the vacationwas authorized or effected by City Ordinance No.1439.

The City realized it had erred in vacating the dis-

puted intersection and asked plaintiff to convey theproperty to the City, which plaintiff refused to do so.


50/169

8a

City Ordinance No. 1439 reserved a utility [9]easement across the disputed intersection. Relying onthat easement and the pedestrian pathway easementalong Greene Street, the City filed an easement pur-porting to allow vehicular access across the disputedintersection.

The fair market value of the disputed intersectionis $8.50 per square foot, or $5,100.

I conclude that City Ordinance No. 1439 had thelegal effect of vacating all of Greene Street, including

the disputed intersection, which consequently vestedin plaintiff as the successor in interest to the ownerthat had originally dedicated the property.

Second, the vehicular access easement filed bythe City exceeds the scope of the utility easementreserved by Ordinance No. 1439, as well as the pede-strian pathway easement on Greene Street, and istherefore invalid.

The Citys actions constitute a taking of the dis-puted intersection and plaintiff is entitled to its fairmarket value of $5,100.

The sixth claim for relief, the so-called retaliationclaim, this alleges that plaintiff engaged in protectedspeech by complaining about being required to buildpublic improvements and refusing to dedicate thedisputed intersection to the City. Plaintiff allegesthat the City and Boris Piatski retaliated against theplaintiff for this speech in a number of ways.

[10] I find with respect to the factual issues thatFrancis Carters testimony is more credible thanIfind Francis Carters testimony credible that BorisPiatski indicated he would not release performance


51/169

9a

bonds until plaintiff dedicated to the City the dis-puted intersection at 13th and Greene Street.

Plaintiff constructed the 10th Street corridor im-provements as specified in a report of the Citysengineer, Kittleson and Associates, and the OregonDepartment of Transportation approved the 10thStreet corridor improvements as constructed.

The City, through Boris Piatski, has failed torelease the bond related to the 10th Street corridorimprovements.

I conclude as a matter of law that the failureto release the performance bonds was motivated byBoris Piatskis intention to retaliate against theplaintiff for exercising its First Amendment rights inregard to its refusal to dedicate the disputed intersec-tion to the City, and to reconstruct the 10th Streetcorridor improvements.

In so refusing to issue the performance bonds, Mr.Piatski violated plaintiffs civil rights as guaranteedunder the First Amendment to the United StatesConstitution.

Plaintiff was caused to incur direct pecuniary costsin the amount of the bond premiums that it contin-ued [11] to have to pay in the amount of $13,053.68.

The plaintiff is entitled to relief against the defen-dant Piatski on its claim in the amount of $13,053.68.In addition, defendant is ordered to release theperformance bond.

I further find that the City itself is liable on theretaliation because Mr. Piatski had final authority on

the day-to-day supervision of the plaintiffs develop-ment of the West Linn Park. Although Im familiarwith the case law under Mannell (ph), I find in this


52/169

10a

case that the plaintiff has demonstrated a deliberatechoice and followed a course of action made fromamong various alternatives by the official responsiblefor establishing final policyin this case Mr. Piatskiwith respect to the subject matter in question, andtherefore I find the City liable on the sixth claim forrelief with respect to the retaliation.

On the seventh claim for retaliations, I find thatthe plaintiff has not carried its burden of proof onthat, and the City is entitled to prevail on theseventh.

With respect to the counterclaims, the defendantsfirst counterclaim seeks an order requiring plaintiffto post a maintenance bond in the event the City isordered to release the performance bond. Defendantsother five counterclaims relate to the vacation of thedisputed intersection at Greene and 13th Street.

[12] The Court concludes that plaintiff is entitledto judgment in its favor on all six of defendants coun-terclaims.

Those are my findings, those are my rulings.

I guess at this time the only question I would haveon the dollar amount, I think there was stipulationsthat it was $5,000on the street vacation issue, Ithink there was a stipulation that it was $5,100. Onthe premiums, my notes reflect $13,053.68, but I amnot sure that didnt continue. So

MS. GELINEAU: It is continuing, Your Honor.

THE COURT: So whatever amount it is at thepresent time would be the amount of that, rather

than the $13,053. So whatever it is at the presenttime, the City is ordered to release the bond.


53/169

11a

Ill entertain questions, not arguments and not judgments about my delay or my wisdom in thesefindings, but for clarification, I think perhaps I wouldask Mr. Willis and Ms. Gelineau if they would pre-pare a judgment order reflecting my decision.

Now, I have not considered whether attorney feesare warranted or not, I have not looked at that issue,so that issue is something separate and apart fromthis.

MR. WILLIS: The only thing I would ask, Your

Honor, is the bond payment amounts I think werediscrete [13] amounts, and I think we requested thatinterest should be allowed on those amounts.

THE COURT: They are discrete amounts.

Mr. Franz, anything on that?

MR, FRANZ: Well, I dont want to quibble toomuch. I guessI mean, Id leave it up to you.

THE COURT: I will grant it in this context. As Isay, its not something that had to be found. Therewas, as Mr. Willis puts it, discrete amounts.

MR. WILLIS: Im just trying to be efficient. Theother thing is, is under the just compensation clausewith adverse taking, theres also interest due on thatfrom the date of taking until its paid.

THE COURT: I will probably allow that. So whenyou prepare the judgment, you can reflect that.

If you feel strongly, Mr. Franz, that you can provethat the Court is in error, then Ill entertain objec-tions. I had expected you to talk about it beforehand

as far as the style and the form of the judgment andso forth, and if theres a real dispute Ill resolve it,but if theres not a dispute, if you have an objection,


54/169

12a

you can put it on the record and Ill still take a look atit.

Mr. Franz?

MR. FRANZ: Do you want like you already ruledsometime back, and I cant remember if it was theeighth [14] cause of action, and that had an attorneyfee provision.

THE COURT: There was the equal protection andthere was

MR. FRANZ: There was something else.

THE COURT:an annexation policy, I think.

MR. FRANZ: Do you want us and Mr. Willis to filea petition for attorney fees and incorporate it in onebig judgment or do you want to have the judgmententered on this, and then if we cant agree on fees, dopetitions?

THE COURT: Why dont we after the judgment onthis then deal with the attorney fees separately, justso we can get this out of the way before I retire.

MR. WILLIS: And then because of scheduling,Your Honor, too, if weonce we enter the judgmentwe may have some time lines to face on those posi-tions on the filing of the petitions, and I would, liketoI would formally move the Court to extend that.

THE COURT: Ill extend whatever time is neces-sary. I know Mr. Willis has to go somewhere and Imleaving town tomorrow. Ill give you whatever timeis necessary for either side to accomplish what youthink is necessary. As I say, Ill expect, as you have

in the past, to deal with the raw materials of thejudgment, and if you can sign off on it, fine, withoutwaiving any rights to either appeal or object to it.


55/169

13a

[15] I think Ive covered everything. I think thecounterclaimsI know we had the eighth and ninthclaims. I can tell you right now. One wasthebreach of the annexation agreement was the ninthclaim, which I found for defendants on summary,

judgment, and I think the eighth claim was the equalprotection argument that I also found for defendants.So we might incorporate those in the final judgment

just to have something tidy and in one document.Then, as I say, Ill deal with the prevailing attorneyfees and costs.

As far as the interest running, Ill do it up untiltoday, the interest as of today, because I dont wantthings rushed as far as getting documents in beforethe cutoff date and so forth. So that will be my ruling.

You will get the bond premiums, plus interest, as oftoday. Because I assume the City will release thebond forthwith. So you may have a day or two ort

petition for a writ of certiorari, west linn corporate park llc v. city of west linn (filed...

Documents

treetop condos west linn, oregon the management trust...

west linn cheer 2021

handout - reading guide ch 15 - west linn-wilsonville

sunset primary school west linn wilsonville school

techplan - west linn- wilsonville school district

concentration presentation - west linn-wilsonville school

hall of fame - west linn of fame west linn high school...

west linn case detail

west linn central village - hsm pacific realty inc · west...

welcome to the west linn & surrounding area’s ibd meet-up

va portland health care system veteran education and group...

introduction to marine biology - west linn-wilsonville

unit 4 culture and identitiy 2016 - west linn

west linn paper compan port hawesbur … service...

distrito escolar de west linn-wilsonville lista de cotejo...

linn technical college linn, mo. · dr. eugene plegge...

linn county west feasibility report 092209

west linn development opportunity

west linn high school hall of fame - west linn-wilsonville...

distrito escolar de west linn-wilsonville lista de cotejo de...