ORDER
JEROME KEARNEY, Magistrate Judge
This matter is before the Court on the Defendants' Motion for Summary Judgment (Doc. No. 38). As of this date, Plaintiff has not responded to the Motion. Accordingly,
IT IS, THEREFORE, ORDERED that Plaintiff shall file a response to Defendants' Summary Judgment Motion within ten (10) days of the date of this Order. Failure to file a Response may result in the dismissal of Plaintiff's Complaint, without prejudice, pursuant to Local Rule 5.5(c)(2).
IT IS SO ORDERED this 23rd day of September, 2010.
gnizing this court's discretion to reframe and restate certified questions).
A third mechanism applies to vacation of places in cities that are included in port districts. ORS 271.180- 271.220.
ORS 271.080 provides, in part:
"(1) Whenever any person interested in any real property in an incorporated city in this state desires to vacate all or part of any street, avenue, boulevard, alley, plat, public square or other public place, such person may file a petition therefor setting forth a description of the ground proposed to be vacated, the purpose for which the ground is proposed to be used and the reason for such vacation.
"(2) There shall be appended to such petition, as a part thereof and as a basis for granting the same, the consent of the owners of all abutting property and of not less than two-thirds in area of the real property affected thereby. * * * In the vacation of any plat or part thereof the consent of the owner or owners of two-thirds in area of the property embraced within such plat or part thereof proposed to be vacated shall be sufficient, except where such vacation embraces street area, when, as to such street area the above requirements shall also apply. The consent of the owners of the required amount of property shall be in writing."
ORS 271.005(1) defines "[g]overning body" as "the board or body in which the general legislative power of a political subdivision is vested." The city council in this case meets that definition.
ORS 271.130 provides, in part:
"(J) The city governing body may initiate vacation proceedings authorized by ORS 271.080 and make such vacation without a petition or consent of property owners. Notice shall be given as provided by ORS 271.110, but such vacation shall not be made before the date set for hearing, nor if the owners of a majority of the area affected, computed on the basis provided in ORS 271.080, object in writing thereto, nor shall any street area be vacated without the consent of the owners of the abutting property if the vacation will substantially affect the market value of such property, unless the city governing body provides for paying damages. Provision for paying such damages may be made by a local assessment, or in such other manner as the city charter may provide.
"* * * * *
"(4) Any property owner affected by the order of vacation or the order awarding damages or benefits in such vacation proceedings may appeal to the circuit court of the county where such city is situated in the manner provided by the city charter. If the charter does not provide for such appeal, the appeal shall be taken within the time and in substantially the manner provided for taking an appeal from justice court in civil cases."
ORS 271.170 provides:
"The provisions of ORS 271.080 to 271.160 are alternative to the provisions of the charter of any incorporated city and nothing contained in those statutes shall in anywise affect or impair the charter or other provisions of such cities for the preservation of public access to and from transportation terminals and navigable waters."
This court has not always been consistent or clear in defining the circumstances in which a government's procedural violation renders its action void. In Nyman v. City of Eugene, 286 Or. 47, 53, 593 P.2d 515 (1979), the court considered prior decisions that had used the concept of governmental "jurisdiction" to resolve the issue. In some of those cases, the court had deemed statutory requirements to be "jurisdictional" and decided that the failure to comply with those requirements rendered the governmental action void. In other cases, in which the court had concluded that statutory defects were not "jurisdictional," the court had presumed that the governmental proceedings were regular despite alleged noncompliance. Id. at 52-53. After surveying those earlier cases, the court in Nyman concluded:
"It is difficult, if not impossible, to determine from these cases why certain statutory requirements are considered `jurisdictional' and others not. * * * We are now of the opinion that clear analysis in this area requires that we establish criteria for determining what statutory requirements are
indispensable to the validity of the challenged action * * * and focus * * * on the specific statutory language that permits the government to affect the rights and obligations of its citizens."
Id. at 53 (emphasis added).
The parties in this case do not cite Nyman in their arguments. Nonetheless, the parties address the test used in Nyman — whether the consent procedure that the city failed to follow was indispensible to the vacation of Greene Street (as the city would have it) or merely a minor irregularity (in plaintiffs terms) not affecting the ultimate validity of the vacation.
That analysis requires consideration of the statutory consent procedures and the role that they play in a city's decision to vacate a street. As noted, there are two relevant statutory mechanisms by which a city may vacate a city street. ORS 271.080(1) permits any person to initiate vacation proceedings. Under that provision, the person files a petition "setting forth a description of the ground proposed to be vacated, the purpose for which the ground is proposed to be used and the reason for such vacation." (Emphasis added.) ORS 271.080(2) mandates that the person filing the petition append, "as a part thereof and as a basis for granting the same, the consent of the owners of all abutting property and of not less than two-thirds in area of the real property affected thereby." After such a petition is filed, the city either may deny the petition or set a time for formal hearing. ORS 271.100 If the city decides to hold a hearing, it is required to publish notice of the hearing. The notice must include, among other things, " the ground covered by the petition." ORS 271.110(1) (emphasis added).
ORS 271.130(1) sets forth a second statutory mechanism by which a city governing body may initiate vacation proceedings. Using that mechanism, a city proceeds without the filing of a petition and attached legal description and without consent of affected landowners. The city gives notice of hearing that includes a description of the street to be vacated to abutting and affected landowners. After hearing, the city may vacate the street unless (1) the abutting land-owners do not consent and the vacation will substantially affect the market value of such property, unless the city provides for payment of damages; or (2) a majority of the affected landowners object in writing.
ORS 271.130(1) provides, in part: "Notice shall be given as provided by ORS 271.110[.]"
The city argues that, in this case, the city council proceeded according to the mechanism initiated by petition outlined in ORS 271.080(1) but
"did not consider the true `petition.' * * * Since the `ground proposed to be vacated' changed by the time of the City Council hearing, it is clear that the City Council considered
a different `petition' than the one that was initially filed after obtaining consent."
The consequence of that defect, the city maintains, is that the vacation is "without legal effect," and to hold otherwise would be to eliminate the need for the consent of affected land-owners in any vacation proceeding.
Plaintiff argues, on the other hand, that that irregularity is inconsequential. Although the vacation proceedings were initiated by petition and the petition did not describe the disputed intersection, the city's notice of hearing provided the correct description and included the disputed intersection. The abutting landowners, plaintiff and Show Timber, acquiesced in that change, and the record does not disclose a written objection by any affected property owner. Thus, had the city begun the proceedings anew when it decided that vacation of the disputed intersection was warranted, and itself initiated vacation proceedings, the vacation could have been accomplished in accordance with the second mechanism for street vacation outlined in ORS 271.130. When the city revised the street description, it gave affected landowners the same opportunity to file objections to the vacation or to appear at the hearing and oppose the vacation that they would have had had the city used its authority to initiate vacation proceedings from the outset.
Understanding that the consent of affected landowners is significant only when vacation proceedings are initiated by petition, we look to Nyman for guidance in assessing the arguments of the parties. Nyman involved the widening of a road. There was no affirmative showing that the widening of the road was a public necessity, that plaintiffs predecessor in interest had given written consent to the widening of the road, or that the city had given plaintiffs predecessor notice of the road widening proceeding. 286 Or. at 50. The court concluded that, in light of competing legislative goals to ensure that county actions establishing roads are final and unassailable and also that affected property owners receive notice of road proceedings, only the notice requirements were indispensable to the validity of the action. Id. at 57. Other statutory requirements that did not render the notice to the property owners ineffectual did not render the county's action void. Id. 11 Similar competing goals are at play in street vacation proceedings. Street vacation affects title to real property, and stability and certainty in real property records is essential. Cf. Bitte v. St. Helens, 251 Or. 548, 551, 446 P.2d 978 (1968) (holding as untimely an appeal from city-initiated vacation ordinance because, where "[t]itle to real property is involved, * * * orderliness and certainty of procedure are extremely important"). By the same token, Oregon statute clearly makes a provision for notice to property owners affected by street vacation and gives them an opportunity to be heard and oppose vacation. If, after notice, a majority of affected property owners object in writing, the city is precluded from vacating the street. However, consent of property owners prior to notice and hearing is necessary only if vacation is initiated by petition. Oregon statute permits city initiation of vacation proceedings without the prehearing consent of affected landowners. Thus, that consent is not indispensible to city street vacation, and, in answer to the Ninth Circuit's third question, we hold that the absence of such consent does not render the vacation ordinance void and of no effect.
In reaching that conclusion, we do not decide that affected landowners would not (or in this case did not) have a right to challenge the validity of the city action. The existence of such remedies is not the question that the Ninth Circuit poses. Instead, as we understand it, the Ninth Circuit asks whether the city ordinance, as it stands, is void. We answer that the failure to satisfy the consent requirements of ORS 271.OSO does not render the city's otherwise valid exercise of its power void or without legal effect.
The certified questions are answered.
KISTLER, J., concurring in part and dissenting in part.
West Linn Corporate Park (WLCP) filed this action in state court, claiming that the City of West Linn (the city) took its property in violation of the state and federal constitutions when it required WLCP, as a condition of development, to pay for off-site improvements. The city removed the case to federal court, and the United States Court of Appeals for the Ninth Circuit certified three questions to this court. See ORS 28.200 (authorizing this court to accept certain certified questions). I agree with the majority's answer to the first and third questions but would answer the Ninth Circuit's second question differently. Specifically, I would decline to give an opinion whether requiring off-site improvements constitutes an exaction for the purposes of the Fifth Amendment. Not only does ORS 28.200 limit certified questions to issues of state law, but there is no need for this court to offer the Ninth Circuit our opinion on federal law.
In Williamson Planning Comm'n v. Hamilton Bank, 473 US 172, 105 S.Ct 3108, 87 L.Ed.2d 126 (1985), the Court held that a federal takings claim will not be ripe in two instances. First, a federal regulatory takings claim will "not [be] ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." Id. at 186; see MacDonald, Sommer Frates v. Yolo County, 411 US 340, 351, 106 S.Ct 2561, 91 L.Ed.2d 285 (1986) (explaining that the resolution of a regulatory takings claim depends on first knowing "the extent of permitted development" on the property). Second, "if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [ Fifth Amendment] Just Compensation Clause until it has used the procedure and been denied just compensation." Id. at 195.
In its opinion certifying the three questions to us, the Ninth Circuit explained that, in this case, only the second prong noted in Williamson — whether Oregon "provides an adequate procedure for seeking just compensation" — is at issue. West Linn Corporate Park v. City of West Linn, 534 F.3d 1091, 1100 (9th Cir 2008). And the Ninth Circuit's opinion suggests that the first two questions that it has certified are, in its view, necessary to resolve that issue. Id. For the reasons explained below, I would give a different answer to the court's second question.
The Ninth Circuit's second question asks whether requiring a property owner to pay for an off-site improvement as a condition of development constitutes an exaction. In explaining its question, the Ninth Circuit notes that the Oregon Court of Appeals held, in one decision, that such a requirement would constitute an exaction under the Fifth Amendment but, in a later decision, questioned that holding. See id. at 1102-04 (discussing Oregon Court of Appeals decisions). As both the majority and I understand the Ninth Circuit's second question, it invites us to explain whether, in our view, requiring a developer to pay for off-site improvements constitutes an exaction under the Fifth Amendment. The majority accepts that invitation. I would decline it.
To the extent that the Ninth Circuit asks for our views on the Fifth Amendment, it asks for more than ORS 28.200 permits us to give. ORS 28.200 provides that we may answer certified questions submitted by other courts to resolve potentially determinative issues of Oregon law. See ORS 28.200 (authorizing the Oregon Supreme Court to accept certified questions regarding the "law of this state"); Western Helicopter Services v. Rogerson Aircraft, 311 Or. 361, 365, 811 P.2d 627 (1991) (explaining that the certified question must "concern Oregon law, rather than the law of some other jurisdiction"). As the terms of that statute make clear, we may answer only questions of Oregon, not federal, law.
There may be instances in which answering certified questions of state law requires us to discuss federal law. See Klamath Irrigation District v. United States, 348 Or. 15 38 n 15, 227 P.3d 1145 (2010). This is not one of them.
Nor does Williamson require us to give the Ninth Circuit our opinion on federal law. The ripeness concern raised in Williamson entailed a more limited inquiry. The substantive issue in Williamson was whether a government regulation that temporarily prevented a property owner from using its property constituted a taking in violation of the Fifth Amendment. 473 U.S. at 185 (identifying that issue). The Court observed that the issue was an open one but declined to reach it because the issue was not ripe. Id. It explained that a state violated the Fifth Amendment only if it took property without providing an adequate procedure for obtaining just compensation. 473 U.S. at 194-95. The Court noted that, under the applicable state law, a property owner claiming that restrictive zoning constituted a taking could bring an "inverse condemnation" claim in state court to recover just compensation. See id. at 196 (discussing Tennessee law). Without some showing that the state's inverse condemnation procedure was unavailable or inadequate, the existence of that procedure was sufficient for the Court to hold that "until [the property owner] has utilized that procedure, its taking claim [in federal court] is premature." Id. at 197.
In Williamson, the Court did not ask whether the Tennessee courts would recognize that a temporary deprivation constituted a taking before holding that the property owner's failure to bring its claim in the Tennessee courts meant that its claim in federal court was not ripe. Rather, the Court held that the Fifth Amendment claim that the property owner filed in federal court was not ripe, without regard to whether the property owner would win or lose on the merits of its Fifth Amendment claim in state court. Conversely, when the only remedy available in state court for a temporary taking was a declaratory judgment, and not damages, the Court held that the available state procedures were not adequate to provide "just compensation." First Lutheran Church v. Los Angeles County, 482 US 304, 312 and n 6, 107 S.Ct 2378, 96 L.Ed.2d 250 (1987); see Williamson, 473 U.S. at 194 n 13 (suggesting that conclusion). The Court accordingly proceeded to reach the substantive federal question in First Lutheran — whether regulations that temporarily deprive a property owner of the use of its property violate the Fifth Amendment — that it had declined to reach in Williamson.
In my view, the only question raised by the second prong in Williamson is whether the procedures for obtaining just compensation in the Oregon courts are adequate. Williamson does not require a federal court to determine how the state court will rule on the merits of the landowner's federal takings claim. Were the rule otherwise, the United States Supreme Court would have asked in Williamson whether the Tennessee courts would have recognized a temporary taking before holding that the property owner's failure to bring its takings claim initially in the Tennessee courts meant that its federal takings claim was not ripe. The Court did not do so, and there is no need for us to tell the Ninth Circuit how we would rule on the substantive federal question in this case. It is or should be sufficient to say that a property owner who alleges that a local government requirement constitutes an exaction that violates the Fifth Amendment may bring that claim in the Oregon courts and receive all the compensation that the Fifth Amendment requires. Answering whether the property owner would win or lose on its substantive federal claim goes beyond what ORS 28.200 permits and Williamson requires.
There is a suggestion in the Ninth Circuit's opinion that it views the scope of an "inverse condemnation claim" as presenting a question of state law, even when the source of law that gives rise to that claim is the Fifth Amendment. As a matter of Oregon law, however, there is no claim for "inverse; condemnation" as such. Suess Builders v. City of Beaverton, 294 Or. 254, 258 n 3, 656 P.2d 306 (1982). Rather, the phrase "inverse condemnation" is
"only `the popular description of a cause of action [which we would now refer to as a claim for relief] against a government defendant to recover the value of property which has been taken in fact by the government defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.'"
Id. (quoting
Thornburg v. Port of Portland, 233 Or. 178, 180 n 1,
376 P.2d 100 (1963));
accord United States v. Clarke, 445 US 253, 257, 100 S.Ct 1127, 63 L.Ed.2d 373 (1980). As the court explained in
Suess Builders, a claim for relief that a government action unconstitutionally took a person's property preceded the use of the phrase "inverse condemnation" as a "popular description" of that claim,
294 Or. at 258 n 3, and the nature of the claim turns on the substantive law that gives rise to it,
see First Lutheran, 482 U.S. at 315 (explaining that form of relief "d[oes] not change the essential nature of the claim"). Describing a claim for relief as an inverse condemnation claim does not convert a claim that finds its source in the federal constitution into a state law claim on which we may offer an opinion pursuant to ORS 28.200. For that reason, I would not answer the Ninth Circuit's second question as the majority does.
This; case also raises the question of how, if at all, the second prong of Williamson applies when a property owner files its takings claim initially in state court, but the defendant removes the case to federal court. That question presents an issue of federal law for the federal courts, and the majority properly declines to address it.
The Ninth Circuit's first question, by contrast, asks our opinion on an issue of state law. It asks whether a property owner bringing a takings claim for an alleged exaction in state court would first have to exhaust its administrative remedies. Citing the reasons typically advanced for requiring exhaustion of administrative remedies, the majority holds that exhaustion is required in state court as a prerequisite to bringing a takings claim. As the majority correctly clarifies, we would not require exhaustion for a Fifth Amendment takings claim brought pursuant to 42 USC section 1983. See Patsy v. Florida Board of Regents, 457 US 496, 516, 102 S.Ct 2557, 73 L.Ed.2d 172 (1982) (holding that courts may not require exhaustion for actions brought pursuant to section 1983). We would, however, require exhaustion for other claims alleging that an exaction constituted an unconstitutional taking. Some questions remain regarding how that state court exhaustion requirement would affect the issue whether WLCP's federal takings claims are ripe for the purposes of Article III. However, those questions are issues of federal law for the Ninth Circuit.
Williamson is not to the contrary. The Court was careful to explain in Williamson, in discussing the first prong of its ripeness analysis, that the requirement that a property owner apply for a variance or take similar steps before bringing a federal takings claim in federal court was not an exhaustion requirement. 473 U.S. at 192-93. That requirement was instead an aspect of ripeness and resulted from the peculiar nature of a regulatory takings claim; a federal court cannot tell whether a local government regulation goes too far and thus constitutes a taking until the local government has finally decided the extent to which development will be permitted. Id.
A landowner may bring a federal takings claim in state court in one of two ways. "[A] landowner is entitled to bring an action in inverse condemnation [for a Fifth Amendment taking] as a result of the self-executing character of the [ Fifth Amendment] with respect to compensation." First Lutheran, 482 U.S. at 315-16 (internal quotation marks omitted). Alternatively, a landowner may bring a federal takings claim pursuant to section 1983. As the Court explained in Patsy, the prohibition against exhaustion derives from congressional intent in enacting section 1983. It does not extend to federal claims brought pursuant to some other claim for relief.
For instance, as long as any Oregon exhaustion requirement is reasonable, it is not clear how the presence or absence of a state court exhaustion requirement affects the question that the second prong of Williamson poses — the adequacy of the state judicial procedures for affording just compensation.
For the reasons stated above, I concur in part and dissent in part from the majority's answers to the certified questions.
Linder, J., joins in this concurring and dissenting opinion.