Lardy v. Washington County , 122 Or. App. 361 ( 1993 )

857 P.2d 885 (1993) 122 Or. App. 361

Michael LARDY and Dianna Lardy, Petitioners,
v.
WASHINGTON COUNTY and Oregon Department of Forestry, Respondents.

LUBA No. 92-170; CA A78969.

Court of Appeals of Oregon.

Petition for Reconsideration June 23, 1993. Decided August 18, 1993.

David B. Smith, Tigard, for petition.

Before DEITS, P.J., and RIGGS and DURHAM, JJ.

On Petitioners' Petition for Reconsideration June 23, 1993.

DEITS, Presiding Judge.

Petitioners seek Supreme Court review of our decision affirming without opinion LUBA's affirmance of Washington County's denial of petitioners' application for approval of a forest management dwelling, 852 P.2d 975. We treat the petition as one for reconsideration, ORAP 9.15, and allow it to address a variation of an argument that has appeared with increasing frequency in cases involving taking claims before LUBA and this court.

The basis for the county's denial was that the proposed dwelling failed to satisfy approval standards in the county's development code. In affirming the county's decision, LUBA held, inter alia, that petitioners' regulatory taking claim was not ripe, because they had not sought approval of other uses of their property and, therefore, could not at this point demonstrate a deprivation of all economically viable or substantial beneficial use of the property.^[1] However, petitioners contended to LUBA that their claim was not one for a "regulatory taking" or an assertion that the governmental action deprived them of all economically viable or beneficial use. Instead, they argued, their claim was that the county's action "result[ed] in such governmental intrusion as to inflict virtually irreversible damage." Fifth Avenue Corp. v. Washington Co., 282 Or. 591, 614, 581 P.2d 50 (1978). Petitioners maintained that the "beneficial use" and the "irreversible damage" formulations are optional bases for asserting a taking under Fifth Avenue, and that the ripeness requirement applies only to the first.

LUBA rejected that argument. It reasoned that, even assuming petitioners' premise that the ripeness requirement applies in one context but not the other, petitioners could not bring themselves within the "irreversible damage" context; under Fifth Avenue, "irreversible damage" can become a relevant inquiry only when the governmental action entails a contemplated eventual taking of private property for public use. LUBA concluded that the action here was not of that kind, but was a straightforward application of a regulation on the private use of the property, to which the only takings standards that can apply are the "beneficial use" test and other tests for regulatory takings. See Nelson v. Benton County, 115 Or.App. 453, 458, 839 P.2d 233 (1992); see also note 1, supra, and note 4, infra. Therefore, even given petitioners' distinction, the ripeness requirement applies here.^[2]

The petition for review presents a number of arguments, the principal one being that LUBA misconstrued Fifth Avenue as making the "irreversible damage" test applicable only in the context of decisions contemplating eventual takings for public use, while making that test inapplicable to taking claims arising from regulatory denials of land uses. We disagree with that argument. LUBA's understanding of Fifth Avenue is clearly correct. See 282 Or. at 609-14, 581 P.2d 50.^[3]

Implicit in petitioners' argument is the premise that a party asserting a taking claim may freely define the legal tests that apply to the claim simply by choosing how to frame its contentions. In this case, as in Nelson v. Benton County, supra, Dodd v. Hood River County, 115 Or.App. 139, 836 P.2d 1373 (1992), aff'd. 317 Or. 172, 855 P.2d 608 (1993), McKay Creek Valley Assn. v. Washington County, 116 Or.App. 299, 841 P.2d 651 (1992), Miller v. Columbia River Gorge Commission, 118 Or.App. 553, 848 P.2d 629 (1993), and Larson v. Multnomah County, 121 Or.App. 119, 854 P.2d 476 (1993), all that occurred is that the proponents applied for uses that the governmental bodies denied or that LUBA or we held were not allowable under land use regulations that applied to the requested uses. Accordingly, their claims could only be for regulatory takings. However, in each instance, the applicants contended that the governmental actions involved something other than or beyond regulations of land use, or that substantive or ripeness tests other than those that federal and state law establish for regulatory takings were applicable. We rejected that attempt to recharacterize the issue in each of the cited cases, and we do so again.^[4]

The parties to appeals have a great deal of latitude in selecting and developing their arguments. However, they are not at liberty to recharacterize the decisions and issues under review as being something they are not. Where the only basis for a taking claim is that a use has been applied for and denied under applicable regulations of private land use, it will seldom if ever be the case that a taking argument that relies on tests and standards other than those applicable to regulatory takings can succeed. Petitioners' argument does not.

Reconsideration allowed; decision adhered to.

NOTES

[1] In Dodd v. Hood River County, 317 Or. 172, 181, 855 P.2d 608 (1993), the Supreme Court reiterated that the principal test for a regulatory taking under Article I, section 18, is whether the property owner is left with "some substantial beneficial use" of the property. No federal constitutional issue was presented in Dodd. Our formulation of the test encompasses the standard as phrased in the Fifth Amendment case law, as well as the Oregon standard. See Cope v. City of Cannon Beach, 317 Or. 339, 855 P.2d 1083 (1993); see also, note 4, infra. We do not imply an answer to whether the two differ in substance.

[2] In Cope v. City of Cannon Beach, supra n. 1, the court held that, at least for purposes of a Fifth Amendment regulatory taking claim, the same ripeness requirement does not obtain when the challenge to the regulation is a facial one. However, the ripeness requirement defined by LUBA is applicable in cases, such as this one, which present "as applied" regulatory taking claims. See, e.g., Yee v. City of Escondido, Cal., 503 U.S. ___, ___, 112 S. Ct. 1522, 1531, 118 L. Ed. 2d 153, 169 (1992); MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S. Ct. 2561, 91 L. Ed. 2d 285 (1986); Cope v. City of Cannon Beach, supra, 317 Or. at 343 n. 4, 855 P.2d 1083 (slip opinion at 4 n. 4); Joyce v. Multnomah County, 114 Or.App. 244, 835 P.2d 127 (1992).

[3] In Dodd v. Hood River County, supra n. 1, the Supreme Court also distinguished between the tests that Fifth Avenue makes applicable to purely regulatory actions and actions involving eventual takings for public use, albeit in a context that differs from the one we discuss. 317 Or. at 181, 855 P.2d 608.

[4] In their petition for review, petitioners also argue that the county's decision does not "substantially advance a legitimate state interest." Such an argument may be made in connection with a regulatory taking claim. See Cope v. City of Cannon Beach, supra n. 1; Miller v. Columbia River Gorge Commission, supra, 118 Or.App. at 556 n. 1, 848 P.2d 629. However, petitioners' argument turns on their underlying assertion that the denial of the dwelling amounted to the taking of a conservation easement. In Dodd v. Hood River County, supra, we rejected the identical assertion and noted that it constituted the same kind of impermissible recharacterization of the challenged decision and of the applicable law that infects petitioners' other argument here. In affirming our decision in Dodd, the Supreme Court specifically approved our rejection of the petitioners' effort to recharacterize the county's denial of a use as the taking of a conservation easement. 317 Or. at 187, 855 P.2d 608.