West Linn Corporate Park L.L.C. v. City of West Linn ( 2011 )

FILED
NOT FOR PUBLICATION APR 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WEST LINN CORPORATE PARK No. 05-36061
L.L.C.,
D.C. No. CV-01-01787-DCA
Plaintiff - Appellee,
v. MEMORANDUM*
CITY OF WEST LINN; BORIS PIATSKI;
JOHN DOES 1-10,
Defendants - Appellants.
WEST LINN CORPORATE PARK No. 05-36062
L.L.C.,
D.C. No. CV-01-01787-DCA
Plaintiff - Appellant,
v.
CITY OF WEST LINN; BORIS PIATSKI;
JOHN DOES 1-10,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Donald C. Ashmanskas, Magistrate Judge, Presiding
Argued and Submitted March 21, 2011
San Francisco, California
Before: TALLMAN and CLIFTON, Circuit Judges, and KORMAN, Senior
District Judge.**
This dispute arises from the development of a corporate office park in West
Linn, Oregon.1 Plaintiff West Linn Corporate Park, LLC (WLCP), the developer,
brought nine state and federal claims against the city of West Linn and several
related co-defendants (collectively, the City). The City raised five counterclaims.
Following a bench trial, the magistrate judge granted relief to WLCP on some of
its claims, but denied relief on others. The magistrate judge also denied all five of
the City’s counterclaims. Both parties appealed.
We initially heard oral argument in May 2008 but then vacated submission
to certify three dispositive questions of state land-use law to the Oregon Supreme
Court. West Linn Corporate Park, LLC v. City of West Linn, 534 F.3d 1091 (9th
Cir. 2008) [9th Cir. Certif. Order]. The Oregon Supreme Court filed its answers to
our certified questions in September 2010. West Linn Corporate Park, LLC v. City
**
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, Brooklyn, sitting by designation.
1
The parties are familiar with the facts, and we repeat them only as
necessary to explain our disposition.
2
of West Linn, 240 P.3d 29 (Or. 2010). With these answers in hand, we heard a
second round of oral argument. We now affirm in part, reverse and remand in part,
and dismiss in part.
I
A
The magistrate judge denied WLCP’s state and federal takings
claims2—brought under the Oregon Constitution and the Fifth Amendment,
respectively—relating to the off-site public improvements required by the City
(claims one and two). The magistrate judge found these claims were not ripe. We
affirm, but on alternative grounds. See Aetna Life Ins. Co. v. Bayona, 223 F.3d
1030, 1034 n.4 (9th Cir. 2009) (“[W]e may affirm the district court on any ground
supported by the record . . . .” (internal quotation omitted)).
We affirm dismissal of the state takings claim (claim one) because the claim
is not cognizable under the Oregon Constitution. The Oregon Supreme Court so
held in its answer to our second certified question. West Linn, 240 P.3d at 49.
Thus, we need not address whether the claim is ripe.
2
WLCP refers to these claims as claims for “inverse condemnation.”
Inverse condemnation is simply a popular term for a takings claim in which the
government has taken property without formal condemnation proceedings. See
United States v. Clarke, 445 U.S. 253, 257 (1980); Suess Buildings v. City of
Beaverton, 656 P.2d 306, 309 n.3 (Or. 1982).
3
On the analogous federal takings claim (claim two), which we must answer
independently, we also affirm the denial of relief. The heart of this Fifth
Amendment claim was that the various off-site public improvements required by
the City were not “roughly proportional” to the impact of WLCP’s proposed office
park. The rough-proportionality test finds its genesis in two Supreme Court
decisions, Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and
Dolan v. City of Tigard, 512 U.S. 374 (1994).
Both Nollan and Dolan involved a plaintiff applying for development
permits and, in response, the city requiring the plaintiff to dedicate part of his or
her own real property for public use. Dolan, 512 U.S. at 379–80; Nolan, 483 U.S.
at 828. In each case, the Supreme Court held the city had effected a taking, thus
requiring just compensation under the Fifth Amendment, because the required
dedications were not proportional to the plaintiff’s proposed development. Dolan,
512 U.S. at 391–96; Nolan, 483 U.S. at 834, 838–39.
Here, the conditions of development called for WLCP to construct several
off-site public improvements with its personal property (money, piping, sand and
gravel, etc.), but they did not require WLCP to dedicate any interest in its own real
property. The Supreme Court has not extended Nollan and Dolan beyond
situations in which the government requires a dedication of private real property.
4
See Lingle v. Chevron USA, Inc., 844 U.S. 528, 547 (2005). We decline to do so
here. Accordingly, WLCP’s second claim does not allege a cognizable federal
Fifth Amendment taking.3 Like the state-law claim, we need not address whether
this claim is ripe.
B
The magistrate judge granted relief to WLCP on its state and federal takings
claims relating to the vacation of Greene Street (claims four and five). On these
two alternative claims, WLCP received $5,100 in damages, as well as $165,000 in
attorney’s fees under section 20.077(2) of the Oregon Revised Statutes and 42
U.S.C. § 1988.43
This is not to say that a plaintiff in a situation like WLCP’s could never
obtain relief under the Constitution. WLCP might have pled its second claim as a
regulatory taking under Penn Central Transportation Co. v. New York City, 438
U.S. 104 (1978). Instead, WLCP hitched its wagon to Nollan and Dolan,
vehemently denying that this case presents a regulatory taking. Further, even
where there is no Fifth Amendment taking, a plaintiff may have a due process
claim against a city’s arbitrary conditions of development. Lingle, 544 U.S. at 548
(Kennedy, J., concurring). We leave resolution of when such a claim might be
viable for another day.
4
The fee award also accounted for WLCP’s success on its claim for
retaliation under the First Amendment, discussed next.
5
This issue turns primarily on whether Ordinance 1439, passed by the West
Linn City Council to vacate Greene Street, was valid under Oregon law. In our
third certified question, we asked the Oregon Supreme Court to resolve this issue:
Thus, the question we confront is whether Ordinance 1439 was an
ultra vires act . . . . If the Oregon Supreme Court answers this
question in the affirmative, the vacation of Greene Street is null and
void, and we must vacate the district court’s judgment that an interest
in a portion of Greene Street vested in favor of WLCP, see Or. Rev.
Stat. § 271.140, and the City’s use of the disputed intersection
worked a taking. If the Oregon Supreme Court answers this question
in the negative, the district court’s ruling will be affirmed.
9th Cir. Certif. Order, 534 F.3d at 1105 (emphasis added). The Oregon Supreme
Court ultimately answered the question in the negative, holding that Ordinance
1439 was not an ultra vires act. West Linn, 240 P.3d at 53.
There is nothing left to decide here. The magistrate judge found the
vacation of Greene Street vested WLCP with ownership in part of the disputed
intersection at Greene and 13th streets. He further found the City had effected a
taking of this property when it recorded an easement, without WLCP’s permission,
allowing public vehicular traffic to continue using the property. These findings of
fact were not clearly erroneous.
6
We thus affirm the $5,100 damages award for WLCP on claims four and
five. However, for reasons discussed next, we must remand for reapportionment of
the $165,000 fee award.
C
The magistrate judge also granted relief to WLCP on its First Amendment
retaliation claim (claim six). He concluded that the City, through its employee
Boris Piatski, had unconstitutionally retaliated against WLCP by refusing to
release a $264,000 performance bond posted by WLCP. WLCP received $13,053
in damages, and the magistrate judge ordered the City to release the performance
bond. The $165,000 attorney’s fee award discussed above also accounted for
WLCP’s success on this claim. We reverse.
To the extent Piatski “retaliated,” he did not retaliate against any
constitutionally protected conduct by WLCP. The First Amendment protects only
conduct that is “inherently expressive.” Rumsfeld v. Forum for Academic and
Institutional Rights, Inc., 547 U.S. 47, 66 (2006). The magistrate judge found
Piatski had retaliated against WLCP’s refusal to dedicate its interest in the disputed
intersection to the City. Even assuming this is true, WLCP’s refusal to convey the
disputed intersection was not “inherently expressive.” See id. It did not convey
any “particularized message.” See Texas v. Johnson, 491 U.S. 397, 404 (1989).
7
Contrary to WLCP’s arguments, refusing to convey the disputed intersection
did not equate to petitioning the government for redress. Rather, WLCP was
simply asserting what it believed were its property rights as part of its ongoing
contractual dispute with the City.
Because there was no First Amendment protected conduct here, we reverse
the judgment for WLCP on claim six. We also remand for reapportionment of the
$165,000 fee award, which should account only for WLCP’s success on its fourth
and fifth claims. See Hensley v. Eckerhart, 461 U.S. 424, 433–34 (1983).
II
The City also appeals the magistrate judge’s denial of its five counterclaims.
In its first counterclaim, the City sought a maintenance bond only if it were ordered
to release WLCP’s performance bond. Because we are reversing the judgment for
WLCP on its sixth claim, to the extent the performance bond remains in force, the
City is not required to release it. In either event, the City’s first counterclaim is
dismissed as moot without prejudice to seeking any necessary relief on this issue
on remand.
We affirm the magistrate judge’s denial of the second counterclaim. The
magistrate judge implicitly found that the public-improvements guarantee (PIG)
8
did not require WLCP to dedicate its interest in the disputed intersection to the
City. This finding was not clearly erroneous.
We also affirm the magistrate judge’s denial of the third through fifth
counterclaims. These three counterclaims all presumed the city council’s vacation
of Greene Street was ultra vires, and thus null and void. The Oregon Supreme
Court held to the contrary in its answer to our third certified question.
Accordingly, the third through fifth counterclaims fail.
Each party shall bear its own costs.
AFFIRMED in part, REVERSED & REMANDED in part, DISMISSED
in part.
9