United States v. 2008-07-28 | 05-36061 | WEST LINN CORP VCITY OF WEST LINN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 WEST LINN CORPORATE PARK No. 05-36061
L.L.C., D.C. No. Plaintiff-Appellee, CV-01-01787-DCA
v.  District of Oregon,
CITY OF WEST LINN; BORIS PIATSKI; Portland
JOHN DOES 1-10,
Defendants-Appellants. 
 WEST LINN CORPORATE PARK No. 05-36062
L.L.C., D.C. No.
Plaintiff-Appellant, CV-01-01787-DCA
v. District of Oregon,
PortlandCITY OF WEST LINN; BORIS PIATSKI; 
JOHN DOES 1-10, ORDER
Defendants-Appellees. CERTIFYING
QUESTIONS TO
THE OREGON
SUPREME COURT

Filed July 28, 2008
Before: Richard C. Tallman and Richard R. Clifton, Circuit
Judges, and Edward R. Korman,* District Judge.
*The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
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COUNSEL
Robert E. Franz, Jr., Esq., Law Office of Robert E. Franz,
Springfield, Oregon, for the City of West Linn.
Donald Joe Willis, Esq., Schwable, Williamson & Wyatt,
Portland, Oregon, for West Linn Corporate Park, LLC.
ORDER
West Linn Corporate Park, LLC (WLCP) commenced this
action in the Circuit Court for Clackamas County, Oregon,
against the City of West Linn and other defendants (collec-
tively the City) alleging that the conditions the City placed on
the approval of the development of the West Linn Corporate
Park amounted to an inverse condemnation under the Oregon
Constitution and an uncompensated taking under the Fifth
Amendment to the United States Constitution. The City sub-
sequently removed the matter to the United States District
Court for the District of Oregon where the City asserted coun-
terclaims seeking a maintenance bond from WLCP and other
equitable relief relating to the vacation of a street abutting
WLCP’s property.
Following a bench trial, the district court entered judgment
in favor of the City on WLCP’s inverse condemnation and
takings claims with respect to off-site improvements WLCP
constructed. The district court also denied the City’s counter-
claims and granted judgment in favor of WLCP on WLCP’s
takings and inverse condemnation claim relating to the vaca-
tion of the abutting street. Finally, the district court granted
judgment in WLCP’s favor on its First Amendment retaliation
claim. The parties cross appealed, and we consolidated the
two cases for review.
At their core, the issues presented in this appeal are inextri-
cably intertwined with WLCP’s claims of inverse condemna-
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tion under Oregon law, and federal law requires us to first
resolve these state-law causes of action before reaching the
merits of the federal takings arguments. See, e.g., Williamson
County Reg’l Planning Comm’n v. Hamilton Bank of Johnson
City, 473 U.S. 172 (1985) (at a minimum, a federal takings
claim is not ripe for review unless the State has been given the
opportunity to deny with finality just compensation for an
alleged taking).
This order certifies to the Supreme Court of Oregon three
dispositive questions of Oregon law to guide our federal tak-
ings analysis. First, we ask whether a plaintiff bringing an
inverse condemnation action alleging that a condition of
development amounts to an exaction or a physical taking is
required to exhaust available local remedies as a prerequisite
to bringing his claim in state court. Second, we ask whether
a condition of development that requires a plaintiff to con-
struct off-site public improvements, as opposed to dedicating
an interest in real property such as granting an easement to a
municipal entity, can constitute an exaction or physical tak-
ing. Third, we ask whether the vacation of a street approved
by the City Council purporting to act pursuant to Or. Rev.
Stat. § 271.110 is ultra vires where the petition does not com-
ply with the landowner consent provisions of Or. Rev. Stat.
§ 271.080.
I
We provide the following factual background.1 The history
of this case dates back to 1903 when the City of West Linn,
Oregon, recorded the Willamette Tracts subdivision plat. As
part of the subdivision, Greene Street and 13th Street were
1The Supreme Court of Oregon may supplement this statement of facts
with any additional information that it deems important from the certified
record in order to resolve the certified questions. The parties are obviously
free to discuss the factual record in support of their legal positions when
they brief the issues before the Supreme Court of Oregon.
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dedicated to the City. Greene Street was located on the north-
ern border of the subdivision; 13th Street divided lots four and
five on the plat. A modern day approximation is graphically
depicted below:
On November 4, 1996, the Willamette Christian Church of
West Linn conveyed lot five on the plat to Randal Sebastian
for $862,553. Sebastian was associated with the Renaissance
Development Corporation, and on November 24, 1997, that
entity submitted to the City a design review application for
what would become the West Linn Corporate Park, owned by
the plaintiff in this case. Ultimately, WLCP obtained lot six
on the plat as well.
Around the same time, nearby properties in the subdivision
began to develop. On February 10, 1998, the City issued a
final order approving the “Summerlinn Apartments,” a multi-
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unit residential development owned by Show Timber Com-
pany. The apartments would be located to the north of WLCP,
and based on Show Timber’s proposal, traffic to the apart-
ment complex was to be routed thru the intersection of Greene
Street and 13th Street.2
On March 6, 1998, the City approved Renaissance’s design
for the corporate park, albeit with caveats — the approval was
conditioned on the construction and delivery of public
improvements to the City. Those conditions included fourteen
requirements:
1. The applicant shall conform to all Federal, State
and Local policies and codes unless granted a
written waiver, modification and/or variance by
the appropriate deciding body.
2. The applicant shall deed or dedicate along the
development’s Blankenship Road frontage, and
construct half street improvements along
Blankenship Road, consistent with the 10th
Street corridor study build-out pavement width
requirements and Chapter 92 of the West Linn
Community Development Code (the requested
sidewalk and planter strip modification is
approved and the City Engineer shall establish
the necessary Blakenship pedestrian crossing
facilities)[.]
3. The applicant shall improve 13th Street from the
development site to Blankenship Road accord-
ing to the City Engineer’s requirements (17%
maximum grade as proposed is approved).
4. The applicant shall petition for vacation of the
Greene Street right-of-way abutting the site. The
213th Street later was renamed “Summerlinn Drive.”
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City shall not authorize occupancy of any build-
ings on the site until the vacation is approved or
until the Planning Director finds the issue of
Greene Street otherwise resolved. The applicant
shall construct a four-foot wide gravel path
within 20 feet of the existing right of way from
13th Street to the easterly property boundary, or
within an easement or new pedestrian pathway
dedication retained by the City as a condition of
vacation of the right of way. If the right of way
is not vacated, the applicant shall install half-
street improvements consistent with the Com-
munity Development Code or apply for and
receive approval of a variance from the City.
. . .
5. The applicant shall construct the 10th street cor-
ridor improvements required by the City traffic
study currently being developed by the traffic
engineering consultant Kittleson & Associates.
(Minimum improvements for the development
shall be the construction of the two traffic signal
lights and associated improvements at the west
bound I-205 freeway off-ramp & 10th Street and
the 10th Street & Solamo Road/Blankenship
Road intersections, along with a sidewalk on the
west side of 10th St. from the River Falls Shop-
ping Center sidewalk and 8th Avenue).
6. The applicant shall grant towing and ticketing
enforcement rights on the fire, life and safety
access corridors within the development.
7. The applicant shall construct the private
parking/driveway isles and fire turnarounds not
to exceed fifteen percent and eight percent
grades respectively,
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8. The applicant shall provide a complete pedes-
trian path between: Building ‘A’ and the 13th
street sidewalk, and between Building ‘A’ and
the gravel path conditioned to be built on the
current Greene Street right-of-way.
9. The applicant shall 1) meet the City’s water
quality requirements by constructing the Storm
Drainage Master Plan regional water quality
facility or if ODOT does not permit [that] proj-
ect provide an in-lieu of fee to the City allowed
by the City of West Linn Municipal Code . . . ,
2) record with the County an agreement with the
City that requires the property owner to operate
and maintain the private storm detention and
water quality facilities, and provide third party
certification to the City that it is working prop-
erly on an annual basis, 3) detain the develop-
ment’s storm water run-off with private
detention facilities so that 2, 5, 10 and 25-year
post development storm drainage release rate is
equal to the 2, 5, 10, and 25-year pre-
development release rate, 4) extend the 18″
storm drainage main stub-out located at
Blankenship Road and 13th Street to the pro-
posed private storm system out-fall at the top of
13th Street, and 5) construct the Storm Drainage
Master Plan Project . . . (10th Street culvert
crossing) or construct a 100-year pre-post pri-
vate storm drainage detention facility for the
development.
10. The applicant shall 1) finance the review of the
development’s fire and domestic water system
demands with the City’s new Water Master
Plan consultant (Montgomery-Watson) to
establish all necessary off-site and onsite water
improvements required for the development
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(The preliminary analysis of the off-site Master
Plan water transmission main construction
improvements that will be necessary is Phase II
of Willamette Falls Drive water transmission
main), 2 [ ]) perform actual fire flow tests on
the various new private fire hydrants (during an
induced high water demand day) that provide
proof that the fire flow is adequate to meet
each of the buildings fire flow requirements, 3)
obtain written approval from the City Engineer
and the City Fire Marshall that the necessary
fire hydrant flows are available prior to any
building related construction with combustible
materials, 4) record with the County an agree-
ment with the City that requires the property
owner to provide annual certification to the
City’s Fire Department that the private fire sys-
tem is operating properly.
11. The applicant shall construct the 13th street
master plan sanitary sewer line if Summerlinn
Apartments has not successfully received
approval for the sanitary sewer inter-basis
transfer and the 13th Street master plan line
elimination by the time this application needs
to complete the 13th Street improvements.
12. The applicant shall construct all of the develop-
ment’s required public improvements prior to
receiving any building final inspection and/or
certificates of occupancy.
13. To assure adequate protection of trees on site,
prior to any site work starting on the property
the following shall be completed: [various con-
ditions]
. . .
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14. The applicant shall provide for at least six cov-
ered bicycle parking spaces.
Following the conditional approval, Sebastian together with
Renaissance successfully sought additional investors, formed
WLCP, LLC, and transferred the property to the LLC. The
corporation’s goal, as the name suggests, is to develop and
lease business sites.
On October 21, 1998, Sebastian on WLCP’s behalf, entered
into a public improvements guarantee (PIG) agreement with
the City, further memorializing the conditions for the pro-
posed development. Among other things, the PIG conditioned
approval on the completion of the improvements by October
15, 1999. The agreement also required WLCP to secure the
completion of the Blankenship and 13th Street improvements
and the Greene Street water line with a $264,000 performance
bond. WLCP complied.
In February 1998, Kittleson issued to the City the consul-
tant’s 10th Street traffic study findings. In light of the con-
struction of WLCP and the Summerlin Apartments, consultant
Kittleson recommended adding two additional traffic lights in
addition to a sidewalk on the west side of 10th Street. Accord-
ing to the study, “[n]o additional roadway work” would be
required to accommodate the WLCP project.
The consulting engineer’s study made further findings. For
example, the study estimated that WLCP would be responsi-
ble for approximately 5.4 percent of the vehicles entering the
10th Street corridor during afternoon peak hours and 3.3 per-
cent of the vehicles utilizing the I-205 on-ramps during that
same time. These figures, however, assumed full occupancy
of the surrounding properties predicted to be finalized by
2018.
As a result of the traffic study, including its future predic-
tions, the City required WLCP (1) to improve the westbound
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I-205 ramps and the 10th Street intersection; (2) widen the
street; (3) construct additional turn lanes; (4) improve storm
drains; (5) create a bike path; (6) relocate street lighting; (7)
move utilities; and (8) install new curbs. The City imposed
these conditions in addition to the installation of traffic lights
and the sidewalk.
According to WLCP, the costs of these improvements
totaled $726,225.48. Because the Summerlinn Apartment
project was subject to the same conditions, WLCP and Show
Timber shared the costs. Thus, WLCP paid its half, totaling
$363,112.74.
As also noted in the conditional approval, WLCP was
required to build Phase II of the City’s Willamette Falls Drive
waterline. WLCP maintains that initially the City represented
that WLCP could build the waterline underneath previously-
engineered transmission lines. The anticipated cost of the
improvement would be that of installing the pipe. However,
the City ultimately required WLCP to build 1400 feet of
waterline through solid rock. Although WLCP shared the cost
with Show Timber, construction through solid rock increased
the total cost. WLCP incurred $172,049 in waterline installa-
tion expenses.
Further, as noted above, WLCP was required to petition to
vacate Greene Street and create a gravel pathway. According
to WLCP, this construction cost it approximately $14,319. In
addition, the City conditioned approval on making improve-
ments to Blankenship Road, constructing waterlines along
Greene and 13th Streets, and making improvements along
13th Street including the sewer and storm system. WLCP
maintains that these improvements cost another $264,970.
Apparently, the City also demanded that WLCP make cash
payments to it in impact fees, and WLCP paid $182,544 as
“System Development Charges” (SDCs). SDCs represent
what the City considers, and attempts to recapture as, 100 per-
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cent of costs that result from the impacts of property develop-
ment. Because the SDCs were more than the cost of the
improvements WLCP delivered to the City, WLCP sought
reimbursement for the overpayments. In lieu of paying cash
to WLCP, as the City had done for Show Timber, the City
provided WLCP with SDC certificates with a face value of
$384,450.
SDC certificates, however, are not the functional equivalent
of cash. For example, such certificates will only cover up to
50 percent of the SDCs on a future project, may not be
exchanged for cash, and are valid only for ten years. To be
sure, SDC certificates are alienable: developers may sell them
to other developers. But the market for these certificates is
small, and the certificates have limited value. In fact, WLCP
was only able to sell its certificates for $12,251, a seventy-
five percent discount.
WLCP did not meet its construction deadline for all of the
public improvements the City required. Nonetheless, WLCP
had lined up tenants to occupy the corporate park. Because
the improvements remained incomplete, the City was unwill-
ing to issue occupancy permits. Ultimately, after negotiations,
WLCP and the City reached a settlement: the City would
issue temporary occupancy permits if WLCP agreed to sign
a release of certain claims relating to the 10th Street improve-
ments (or the 10th Street corridor as the parties refer to it).3
WLCP maintains that the City breached this agreement
when it demanded additional improvements to the 10th Street
corridor and refused to release the bond with which WLCP
secured its performance even though the Oregon Department
of Transportation (ODOT) approved its 10th Street improve-
ments and authorized the release of the bond.
3We do not recount the terms of the agreement in full detail because
they are not necessary to answer the certified questions.
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On November 8, 2001, WLCP commenced this action in
the Clackamas County Circuit Court. The City subsequently
removed the action to the United States District Court for the
District of Oregon. In its nine-count amended federal com-
plaint, WLCP alleged that the conditions the City imposed on
the approval of its development worked a taking in violation
of the state and federal Constitutions (counts one and two
(inverse condemnation)); the City was unjustly enriched by
the improvements WLCP constructed (count three); the City
effected a taking of a portion of the intersection at Greene and
13th Street in violation of the state and federal Constitutions
(counts four and five (inverse condemnation)); the City and
co-defendant City Inspector Boris Piatski retaliated against
WLCP in violation of the First Amendment for WLCP’s
speech (counts six and seven); the City violated the Civil
Rights Act under Oregon law by treating WLCP differently
than other similarly situated developers (count eight); and the
conditions the City imposed were in breach of a 1975 annex
agreement (count nine).
For its part, the City asserted five counterclaims seeking
declaratory and injunctive relief. The City sought an order
compelling WLCP to post a maintenance bond with respect to
disputed improvements should the district court order the
release of the initial bond (counterclaim one); an order com-
pelling WLCP to convey its interests in the Greene Street and
the 13th Street intersection to the City (counterclaim two); a
declaration that the City’s vacation of Greene Street was null
and void (counterclaim three); alternatively, an order rescind-
ing the vacation of Greene Street and requiring the vacation
to occur based on the consent of all property owners involved
(counterclaim four); and an order to abate further action on
the case until the City initiates proceedings to properly vacate
Greene Street in accordance with Oregon law (counterclaim
five). The City also requested that the district court order
WLCP to return the SDC credit certificates in the event dam-
ages are awarded.
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Thereafter, WLCP filed a motion for partial summary judg-
ment, and the City cross-moved for summary judgment as to
all counts. The parties consented to proceedings before United
States Magistrate Judge Donald C. Ashmanskas, and he
issued an order granting summary judgment to the City on
WLCP’s eighth and ninth counts. The magistrate judge other-
wise denied the cross-motions and set the matter for a bench
trial.
The nine-day bench trial commenced on August 30, 2004.
On July 15, 2005, Judge Ashmanskas issued his decision
orally. He granted relief to WLCP on its inverse condemna-
tion claims set forth in counts four and five and on its claim
for unconstitutional retaliation, count six. With respect to the
first and second counts’ claim of inverse condemnation, the
court determined that those counts were unripe for judicial
review because WLCP had not availed itself of local reme-
dies. The magistrate judge also reasoned that to the extent
those counts related to the 10th Street improvements, WLCP
had waived its claims. Finally, the magistrate judge denied
relief on WLCP’s claim of unjust enrichment (count three)
and the City’s five counterclaims.
WLCP unsuccessfully moved for reconsideration as to the
denial of the inverse condemnation claims, and this timely
appeal followed. WLCP challenges only the denial of the first
two counts on appeal. The City has cross-appealed and chal-
lenges the magistrate judge’s denial of its counterclaims as
well as the judgment in favor of WLCP on its claims for
inverse condemnation set forth in counts four and five, and
WLCP’s claim for unlawful retaliation.
II
A
We are mindful that the decision to accept and answer cer-
tified questions is left to the Oregon Supreme Court’s sound
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discretion. See Or. Rev. Stat. § 28.200; Western Helicopter
Servs., Inc. v. Rogerson Aircraft Corp., 811 P.2d 627, 630
(Or. 1991). And the jurisdiction of the Oregon Supreme Court
is only properly invoked when the certified questions satisfy
five statutory criteria. Those criteria require that “(1) [t]he
certification must come from a designated court; (2) the ques-
tion must be one of law; (3) the applicable law must be Ore-
gon law; (4) the question must be one that ‘may be
determinative of the cause;’ and (5) it must appear to the cer-
tifying court that there is no controlling precedent in the deci-
sions of this court or the Oregon Court of Appeals.” Id.; Or.
Rev. Stat. § 28.200. As explained more fully below, because
the three certified questions of law largely dictate the justicia-
bility of this matter, are not clearly answered under the pres-
ent state of Oregon law, and plainly implicate the
development of local land use law, we believe the better
course of action is to request the Oregon Supreme Court to
answer them in the first instance.
B
Article III of the Constitution limits the jurisdiction of fed-
eral courts to consideration of actual cases and controversies,
and federal courts are not permitted to render advisory opin-
ions. See Rhoades v. Avon Products, Inc. 504 F.3d 1151, 1157
(9th Cir. 2007) (citing Pub. Serv. Comm’n v. Wycoff, Co., 344
U.S. 237, 244 (1952)). “Ripeness is more than a mere proce-
dural question; it is determinative of jurisdiction. If a claim is
unripe, federal courts lack subject matter jurisdiction and the
complaint must be dismissed.” Southern Pac. Transp. Co. v.
City of Los Angeles, 922 F.2d 498, 502 (9th Cir. 1990).
In Williamson, the Supreme Court held that a land owner’s
Fifth Amendment takings claim against a local government is
not ripe until the claimant has availed himself of all the
administrative remedies through which the government might
reach a final decision regarding the regulations that effect the
taking, and any state judicial remedies for determining or
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awarding just compensation. See 473 U.S. at 186 (holding that
“[b]ecause respondent has not yet obtained a final decision
regarding the application of the zoning ordinance and subdivi-
sion regulations to its property, nor utilized the procedures
Tennessee provides for obtaining just compensation, respon-
dent’s claim is not ripe”). The first condition, which has come
to be known as “prong-one ripeness,” requires a claimant to
utilize available administrative mechanisms, such as seeking
variances from overly-restrictive or confiscatory zoning ordi-
nances, so that a federal court can assess the scope of the reg-
ulatory taking. Id. at 190-91. The second condition (“prong-
two ripeness”) is based on the principle that “[t]he Fifth
Amendment does not proscribe the taking of property; it pro-
scribes taking without just compensation.” Id. at 194. Conse-
quently, “if a State provides an adequate procedure for
seeking just compensation, the property owner cannot claim
a violation of the [federal] Just Compensation Clause until it
has used the procedure and been denied just compensation.”
Id. at 195.
C
Although Williamson arose in the context of an alleged reg-
ulatory taking, we have held that physical takings or exactions4
employ, if at all, a modified form of the Williamson analysis.
Daniel v. County of Santa Barbara, 288 F.3d 375, 382 (9th
Cir. 2002). In Daniel, we explained that under California law,
the question was not whether a landowner need satisfy prong-
one ripeness. After all, those considerations are “automati-
cally satisfied at the time of the physical taking” for “[w]here
there has been a physical invasion, the taking occurs at once,
4The term “physical taking,” or a physical intrusion to benefit the public
that the government causes to be placed on private property, generally is
synonymous with an “exaction,” or a condition of development that local
government places on a landowner to dedicate a real interest in the devel-
opment property for public use. See, e.g., Dolan v. City of Tigard, 512
U.S. 374 (1994).
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and nothing the city can do or say after that point will change
that fact.” Id. Rather, the only pertinent inquiry is prong two.
We emphasized that “as in a regulatory takings case, the prop-
erty owner must [still] have sought compensation for the
alleged taking through available state procedures.” Id.
III
A
The availability, applicability, and adequacy of such state
procedures require us to examine Oregon law in this instance.
See id. We therefore turn to the first basis for our certification
order, whether Oregon law requires a landowner alleging a
claim of inverse condemnation arising from conditions of
development seeking exactions to exhaust available remedies
to obtain a final determination from the State that it will pay
no compensation. Stated otherwise, was WLCP’s complaint
filed in the Clackamas County Circuit Court sufficient under
Oregon law to seek a final determination of compensation?
Because the justiciability of WLCP’s takings claims turns on
the Oregon Supreme Court’s answer, this “question of law”
is one that is “determinative of the cause.” Western Helicopter
Servs., Inc., 811 P.2d at 630.
The Oregon Supreme Court has not had occasion to con-
sider this specific question of exhaustion. Two decisions,
however, one from the Oregon Court of Appeals, and another
from the Land Use Board of Appeals, reach opposite conclu-
sions, highlighting, we feel, the unsettled nature of this aspect
of Oregon law. Compare Nelson v. City of Lake Oswego, 869
P.2d 350 (Or. Ct. App. 1994) with Reeves v. City of Tualatin,
31 Or. LUBA 11, 1996 WL 33118832 (1996).
In Nelson, plaintiff landowners applied to the city for a per-
mit to build a house. After reviewing the application, the city
determined that, based on a faulty property description, it
would grant the application only after the landowners applied
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for and obtained a lot line adjustment between their property
and the adjoining neighbors. The city approved the landown-
er’s adjustment, but conditioned it upon the execution of
“nonremonstrance” agreements in which the landowners
agreed not to oppose future street improvements. The city also
required the landowners to convey a fifty-five foot drainage
easement as a condition of approval. The landowners did not
appeal any of the city’s conditions as was permitted under the
city code, and instead filed suit in state court.
The court of appeals found that all but one of the landown-
ers’ claims were subject to exhaustion of local remedies. The
condition that the landowners convey the drainage easement,
it reasoned, was not. Citing to MacDonald, Sommer & Frates
v. Yolo County, 477 U.S. 340, 348 (1986), the Oregon Court
of Appeals explained that “[t]here is good reason why the
courts have not extended the exhaustion/ripeness requirement
to cases like this one [involving an exaction]: They have noth-
ing to do with its purpose.” Nelson, 869 P.2d at 353. In fact,
the purpose of the ripeness requirement stems from the nature
of a regulatory taking itself:
It follows from the nature of a regulatory takings
claim that an essential prerequisite to its assertion is
a final and authoritative determination of the type
and intensity of development legally permitted on
the subject property. A court cannot determine
whether a regulation has gone ‘too far’ unless it
knows how far the regulation goes.
The tests for regulatory takings under the state and
federal constitutions are whether the owner is
deprived of all substantial beneficial or economically
viable use of property. The reason why the
exhaustion/ripeness analysis makes sense in that
context is that, with rare exceptions, no particular
denial of an application for a use can demonstrate
the loss of all economic use. That is so for two rea-
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sons. First, the fact that one use is impermissible
under the regulations does not necessarily mean that
other economically productive uses are also pre-
cluded; and second, until alternative uses are applied
for or alternative means of obtaining permission for
the first use are attempted, there can be no conclu-
sive authoritative determination of what is legally
permitted by the regulations. Therefore, the courts
cannot perform their adjudicative function on a
claim predicated on a single denial, because some-
thing more must be decided by the local or other reg-
ulatory authority before there can be a demonstrable
loss of all use and, therefore, a taking.
Id. at 353-54 (internal citations and quotation marks omitted).
By contrast, in the case of an exaction, such as a drainage
easement, the court of appeals continued, “the condition has
been imposed and the easement has been acquired by the
city.” Id. at 354. As a result, nothing further must occur “at
the local or administrative level in order for the claim to be
susceptible to adjudication; the only question is whether what
has occurred is a taking under the legal test that the condition
must bear a reasonable relationship to the impacts of the use
to which the city has attached it.” Id. (citation omitted).
Indeed, “[t]he facts on both sides of the equation are readily
susceptible to conventional judicial proof, and the adjudica-
tion of the facts and of the applicable law is well within the
judicial competence.” Id. The holding in Nelson supports the
proposition that a landowner need not exhaust local remedies
in a physical takings case before bringing his inverse condem-
nation claim in state court.
Reeves, a case that postdates Nelson, appears to us to retain
language that would, at least in some instances, require
exhaustion in an exactions case. In that case, the petitioner
sought approval for a fifty-five unit subdivision in the city’s
low density residential planning district. The city approved
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the application, but conditioned it on, among other things,
dedicating a ten-foot right of way, improving up to the center
line a street abutting the property, paving part of that street,
constructing a bicycle lane, and extending a twelve-inch water
line for later expansion by the city.
In concluding that the petitioner had not exhausted avail-
able remedies, the board of appeals distinguished Nelson on
two grounds. First, the board explained, “[i]n Nelson the
applicant could not have anticipated that dedication of an
easement would be required. It was simply imposed as part of
the approval.” Reeves, 1996 WL 33118832, at *4. As a result,
“[e]ven if a variance process had been available, the first time
the applicant would have known of the need to request a vari-
ance was after the approval was granted.” Id. Since petitioner
Reeves could have availed himself of such an appeal at the
outset, the board concluded that his failure to avail himself of
that remedy was fatal.
Second, the board reasoned that at the time of the action,
the easement in Nelson already had been granted. By contrast,
the city had not yet acquired the easement in Reeves. Conse-
quently, in the board’s view, there was still something left to
happen at the local level, such as determining the extent to
which the city would impose the conditions on petitioner
Reeves’s property.
In this case, it is undisputed that WLCP exhausted no local
remedies that were available before bringing its manifold
claims. If the Oregon Supreme Court holds that a plaintiff
bringing an inverse condemnation claim premised on allega-
tions of overreaching exactions must first do so, then WLCP’s
federal takings claims are not yet ripe for our review and we
will dismiss that portion of WLCP’s appeal. Because this
question of inverse condemnation jurisprudence is unsettled
in Oregon, and because, if clarified definitively by the Oregon
Supreme Court, the answer will have far-reaching effects on
commercial development in Oregon, we have concluded that
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the better course of action is to certify this issue to the Oregon
Supreme Court.
B
The Oregon Supreme Court similarly has not had occasion
to consider whether conditions of development that require
off-site public improvements, that is, a requirement that a
landowner improve public property — outside of the pro-
posed development site — in which the landowner has no
property interest can amount to an exaction. One case from
the Oregon Court of Appeals of which we are aware squarely
answers that question in the affirmative. See Clark v. City of
Albany, 904 P.2d 185 (Or. Ct. App. 1995). However, a recent
Oregon Court of Appeals decision has cast doubt on the con-
tinuing validity of Clark. See Dudek v. Umatilla County, 69
P.3d 751 (Or. Ct. App. 2003).
In Clark, the city conditioned the approval of a site plan for
a fast food drive-in store on improvements to a nearby street,
the drainage system, and sidewalks, among others. Those
improvements were codified as conditions four and five, and
read as follows:
4. Prior to issuance of building permits, design
for street improvements for Spicer Road. The
improvements shall be for an ultimate width of 36
feet, and shall extend from a point 150 feet east of
the subject property east property line to the intersec-
tion of the Santiam Highway. The design section
shall be sufficient for a minor collector street desig-
nation. Make design allowances for a commercial
driveway intersecting Spicer Road at the current
commercial driveway intersection.
5. Prior to issuance of building permits, provide
financial assurances for or construct improvements
to Spicer Road. Improvements shall consist of a par-
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tial street, drainage, and minimum seven foot curb
line sidewalk improvements with appropriate transi-
tions to the east and west of the subject property.
Depending on the condition and section of the exist-
ing roadway, an overlay may be required on portions
of the roadway not being incorporated into the par-
tial street improvement.
Id. at 187.
The city maintained that these exactions were not subject
to the analysis set forth in Dolan, 512 U.S. at 374 (treating
exactions as different from regulatory takings and essentially
the same as a physical taking), because they “[did] not require
a dedication of a property interest to the public or the body
from which the development approval [was sought].” Clark,
904 P.2d at 189. In rejecting that argument, the court of
appeals reasoned:
[O]n their face, conditions 4 and 5 do impose
exactions that are subject to the Dolan analysis:
They require petitioner, as a prerequisite to develop-
ing his property, to make road improvements on and
extending beyond the affected property, and the
improvements are to be available for some public
use.
We implicitly concluded [that off-site improve-
ments that do not require the dedication or transfer
of property interest do not amount to exactions] in
J.C. Reeves Corp. v. Clackamas County, 131
Or.App. 615, 887 P.2d 360 1994), where we applied
the Dolan test to developmental conditions analo-
gous to conditions 4 and 5 here.
. . .
[T]he fact that Dolan itself involved conditions
that required a dedication of property interests does
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not mean that it applies only to conditions of that
kind. This case is not the appropriate one for univer-
sal line-drawing because, in our view, there is no rel-
evant and meaningful distinction between conditions
that require conveyances and conditions like the
fourth and fifth ones here. For purposes of takings
analysis, we see little difference between a require-
ment that a developer convey title to the part of the
property that is to serve a public purpose, and a
requirement that the developer himself make
improvements on the affected and nearby property
and make it available for the same purpose. The fact
that the developer retains title in, or never acquires
title to, the property that he is required to improve
and make available to the public, does not make the
requirement any the less a burden on his use and
interest than corresponding requirements that happen
also to entail memorialization in the deed records.
Id. (citations omitted).
In Dudek, the court of appeals suggested that Clark was
open to question following the United States Supreme Court’s
decision in City of Monterey v. Del Monte Dunes at Monterey,
Ltd., 526 U.S. 687 (1999). The Oregon Court of Appeals
explained:
[O]ur holding in Clark v. City of Albany, regard-
ing the application of Dolan to the imposition of
requirements to make off-site improvements is open
to question following the Supreme Court’s decision
in [Del Monte Dunes]. In that case, the Supreme
Court cautioned against application of the test in
Dolan beyond “the special context of exactions-land
use decisions conditioning approval of development
on the dedication of property to public use.” The
recent federal decisions cited suggest such a condi-
tion, to the extent that it requires the expenditure of
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money and not a giving over of a real property inter-
est, might not fall under the same review as a real
property exaction requirement of the sort seen in
Dolan.
Dudek, 69 P.3d at 758 n.10.
In this case, it is unclear how Oregon law would classify
the conditions placed on the development of the West Linn
Corporate Park to improve public property off its site. On the
one hand, if the Oregon Supreme Court holds that such condi-
tions can amount to an exaction, then assuming there is no
need for exhaustion, we may proceed to analyze the condi-
tions under the Dolan framework. If, on the other hand, the
Oregon Supreme Court concludes that off-site public
improvements do not amount to exactions, then it is unclear
whether under Oregon law, there is any viable cause of action
for inverse condemnation. As above, this question has poten-
tially broad implications that, if definitively clarified by the
Oregon Supreme Court, would affect local level development
efforts. An answer would be dispositive as to this portion of
the federal appeal.
C
Finally, no Oregon court of which we are aware has had
occasion to consider the legal effect of a street that was pur-
portedly vacated by the procedures set forth under Oregon
Revised Code § 271.120 but that did not comply with the
landowner consent provisions of Oregon Revised Code
§ 271.080. It is undisputed that the map depicting the portion
to be vacated was in error when the petition was circulated for
approval by affected landowners in the neighborhood.
As noted, condition of development 4 required WLCP to
“petition for vacation of the Greene Street right-of-way abut-
ting the site. The applicant shall construct a four foot wide
gravel path within 20 feet of the existing right of way from
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13th Street to the easterly property boundary, or within an
easement or new pedestrian pathway dedication retained by
the City as a condition of vacation of the right of way.” This
requirement was further codified in the PIG agreement, which
noted “[t]hese improvements include waterline improvements
on Green[e] Street . . . and the gravel path within the Greene
Street vacation area.”
In accordance with the City’s demand, Show Timber,
which was subject to the same condition, employed engineers
to draw up a legal description of the proposed vacation of
Greene Street. Thereafter, consent of area property owners
was obtained based on the legal description. The legal
description, however, did not include the intersection of 13th
Street and Greene Street (the disputed intersection).
The proposed vacation was then submitted to the City.
However, City planner Eric Spir objected to the proposal, and
the City ultimately demanded that Greene Street be vacated in
its entirety. The consulting engineers objected to the City’s
demand because, they reasoned, through traffic on 13th Street
would be blocked as a result.
Show Timber and WLCP acquiesced. A new legal descrip-
tion was prepared that included the disputed intersection. This
second legal description was incorporated into public notices
published for proposes of the vacation and the subsequent
public hearing on the matter. Following the public hearing,
the City Council approved the vacation of Greene Street in its
entirety and passed City Ordinance No. 1439, which codified
the vacation.
WLCP contends that Ordinance No. 1439 had the full legal
effect of vacating Greene Street, and by operation of law, a
portion of the intersection vested in it free of any interest held
by the City. The City maintains that the ordinance has no
legal effect because it was adopted without the consent of all
necessary landowners.
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Oregon Revised Code § 271.080(2) requires “the consent
of the owners of all abutting property and of not less than
two-thirds in area of the real property affected thereby” to “be
appended to [the] petition [for vacation], as a part thereof and
as a basis for granting the same[.]” It is undisputed that,
although the first legal description submitted contained the
required landowner consent, the second amended description
that was submitted with the petition did not.
It is otherwise conceded that the statutory formalities were
followed. The petition was presented to the city recorder,
found to be sufficient, filed, and at least one petitioner was
given notice of when the matter would come before the City
Council. See Or. Rev. Stat. § 271.090. Public notices contain-
ing the second legal description were published along with the
date for the public hearing. See Or. Rev. Stat. § 271.110.
Finally, the City Council at a public hearing “hear[d] the peti-
tion and any objections [and] . . . determine[d] [that] the con-
sent of the owners of the requisite area ha[d] been obtained,
[t]hat notice ha[d] been duly given and [that] the public inter-
est will [not] be prejudiced by the vacation of such . . . street.”
Or. Rev. Stat. § 271.120. Consequently, the City Council
“m[ade] such determination a matter of record and vacate[d]
such . . . street[.]” Id. It adopted Ordinance 1439.
Thus, the question we confront is whether Ordinance 1439
was an ultra vires act because although the City Council fol-
lowed procedural formalities in its adoption, the petition pre-
sented for its consideration did not fully comply with Oregon
Revised Statute § 271.080. 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 nega-
tive, the district court’s ruling will be affirmed.
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IV
ORDER
In light of our foregoing discussion, and because the
answers to these questions of Oregon law for which there is
unclear precedent are determinative of the federal cause, see
Or. Rev. Stat. § 28.2000, we respectfully certify to the Oregon
Supreme Court the following questions under Oregon law:
(1) Must a landowner alleging that a condition of
development amounts to an exaction or physical tak-
ing 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 consti-
tute 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?
We do not intend, by the phrasing of these questions, to
restrict the Oregon Supreme Court’s consideration of the
issues. The Oregon Supreme Court may, of course, in its dis-
cretion reformulate the questions. Broad v. Mannesman Anla-
genbau AG, 196 F.3d 1075, 1076 (9th Cir. 1999).
If the Oregon Supreme Court accepts review of the certi-
fied questions, we designate WLCP to file the first brief pur-
suant to Oregon Rule of Appellate Procedure 12.20.
The Clerk of Court is hereby ordered to transmit forthwith
to the Oregon Supreme Court, under official seal of the
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United States Court of Appeals for the Ninth Circuit, a copy
of this order and all briefs and excerpts of record. Or. Rev.
Stat. § 28.215; Or. R. App. P. 12.20.
Further proceedings in this court on the certified questions
are stayed pending the Oregon Supreme Court’s decision
whether it will accept review and, if so, receipt of the answer
to the certified questions. The case is withdrawn from submis-
sion until further order from this court. The panel will resume
control and jurisdiction upon receipt of an answer to the certi-
fied questions or upon the Oregon Supreme Court’s decision
to decline to answer the certified questions. When the Oregon
Supreme Court decides whether or not to accept the certified
questions, the parties shall file a joint status report informing
this court of the decision. If the Oregon Supreme Court
accepts the certified questions, the parties shall file a joint sta-
tus report informing this court when the Oregon Supreme
Court issues its answers.
It is so ORDERED.
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