Here is what the ripeness requirements of Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) have brought us: 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 latest example 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.
Like a good plaintiff is supposed to do under Williamson County, West Linn Corporate Park (WLCP) began this odyssey in state court. It 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 Countyrule, coupled with the full faith and credit doctrine, effectivelyshuts 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).
After the trial, the federal district court held partially in favor of the landowner on its inverse condemnation claims and its claims for municipal retaliation. The court held the remaining inverse condemnation claims were not ripe since the landowner had not exhausted available state remedies. See slip op. at 9359. Up on appeal they went, where the Ninth Circuit punted the federal takings claims back to state court, holding that the outcome of the federal claims turned on questions of state law. 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.
On the first question, recall that Williamson County ripeness has two components: (1) there must have been a definitive action by the government on what uses it would or would not allow, and (2) the state must have denied compensation. The first requirement is to fix the government’s position to allow the court to assess the scope of the taking, and is not applicable to physical takings or exactions, since the scope of the taking is obvious. The second requirement is based on the idea that the Fifth Amendment does not prohibit takings, just takings “without just compensation,” so there has been no violation of rights until the state has denied compensation. The Ninth Circuit held that under the second requirement, the Oregon Supreme Court should decide whether there is an available, applicable, and adequate compensation remedy under Oregon law that the landowner must exhaust. The Ninth Circuit determined that Oregon law was not clear, asserting that a decision from the Oregon Court of Appeals conflicted with a decision by the Land Use Board of Appeals. See Nelson v. City of Lake Oswego, 869 P.2d 350 (Or. Ct. App. 1994), and Reeves v. City of Tualatin, 31 Or. LUBA 11, 1996 WL 33118832 (1996). The Ninth Circuit did not explain how a decision from a non-judicial agency can conflict with a decision by the Court of Appeals for certification purposes. For a case to merit certification to the Oregon Supreme Court, that court’s rules require that “it must appear to the certifying court that there is no controlling precedent in the decisions of this court or the Oregon Court of Appeals.” Slip op. at 9360 (quoting Western Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 811 P.2d 627, 630 (Or. 1991)). Nelson is a decision of the Court of Appeals, and it is clear: exhaustion is not required in exaction cases. It seems as if the Ninth Circuit was stretching to find a conflict.
On the second certified question, the Ninth Circuit was on slightly firmer ground with its claim of unsettled Oregon law. It determined that the Oregon courts had not definitively determined that requiring a landowner to make off-site improvements is an “exaction” subject to Nollan/Dolan analysis. The court noted that a 1995 Court of Appeals decision held that requiring off-site improvements was subject to Nollan/Dolan scrutiny, see Clark v. City of Albany, 904 P.2d 185 (Or. Ct. App. 1995), but that a 2003 Court of Appeals decision had called Clark into question. See Dudek v. Umatilla County, 69 P.3d 751 (Or. Ct. App. 2003). While it does appear that there is a question of whether the Oregon courts have settled on doctrine regarding this question, it does not appear that the question is one of Oregon law. Nollan/Dolan is a requirement of the Fifth Amendment, and the Ninth Circuit does not explain why a federal court cannot answer the question.
Finally, on the third certified question, the Ninth Circuit noted that there are no Oregon court decisions regarding application of the statute in question, and whether the failure to strictly comply with its provisions renders the result void. Here, the Ninth Circuit was on its firmest ground in its lateral pass to the Oregon Supreme Court, yet does not explain why this question is of such importance that the federal court could not apply a state statute’s terms, as federal courts do all the time, and why it was necessary to throw the question to the Oregon Supreme Court.
More to follow, as they say.
Professor Patty Salkin has posted a summary of the decision on Law of the Land here. Read the Ninth Circuit’s opinion here.