Here’s a case that reveals exactly what is wrong with the Supreme Court’s ripeness doctrine in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985). As we noted in this post, it’s “a seemingly endless procedural game where property owners are forced to keep guessing which shell the pea is under, all the while paying their attorneys to litigate matters having nothing to do with the question of whether a local government’s regulations have gone ‘too far.'”
The Oregon Supreme Court’s opinion in West Linn Corporate Park v. City of West Linn, No. S056322 (Sep. 23, 2010) only confirms our belief that the Court never intended Williamson County to be wielded in this fashion, and in effect deny property owners their day in court.
This case has a tortured procedural history. It started off in state court, as required by Williamson County. The property owner claimed, among other things, that exactions the city imposed on the approval of its development proposals took its property in violation of the U.S. and Oregon constitutions, and that the city retaliated against it for asserting its constitutional rights. See this post and the comments for an illustration of how the Williamson County rule, coupled with the full faith and credit doctrine, effectively shuts out federal Fifth Amendment claims from being heard in federal courts.
The city, however, removed the case to federal court, something it is entitled to do since the federal courts have yet to recognize the illogical asymmetry in the fact that a landowner cannot institute a federal takings claim in federal court because there purportedly is no ripe federal question, but the government can remove a federal takings claim to federal court on the basis of original federal question jurisdiction. See, e.g., City of Chicago v. Int’l College of Surgeons, 522 U.S. 156 (1997).
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ample is West Linn Corporate Park, LLC v. City of West Linn, Nos. 05-36061, 05-46062 (9th Cir. July 28, 2008), a case in which the Ninth Circuit, after removal from state court and trial in federal court, referred the takings issues in the case to the Oregon Supreme Court, effectively handing off the decision in the case to that court.
The Ninth Circuit certified three questions to the Supreme Court of Oregon:
(1) Must a landowner alleging that a condition of development amounts to an exaction or physical taking exhaust available local remedies before bringing his claim of inverse condemnation in an Oregon state court?
(2) Can a condition of development that requires a landowner to improve off-site public property in which the landowner has no property interest constitute an exaction?
(3) Under Or. Rev. Stat. § 271.120, is a City Council’s purported vacation of a street ultra vires when the petition for vacation does not comply with the landowner consent provisions of Or. Rev. Stat. § 271.120?
Slip op. at 9372.