428 F. App'x 700
9th Cir.2011Background
- WLCP, developer, sued City of West Linn and related defendants over off-site improvements and related takings claims; City asserted five counterclaims.
- Bench trial: magistrate granted some relief to WLCP and denied others; all five City counterclaims were denied.
- Oregon Supreme Court certified questions on (i) whether Ordinance 1439 was ultra vires and (ii) related takings implications; answers issued in 2010.
- District court dismissed WLCP’s state takings claim as non-cognizable under Oregon Constitution; WLCP’s federal takings claim found not cognizable under Fifth Amendment due to lack of required real-property dedication.
- Greene Street vacation: magistrate held WLCP vested with part of the intersection; city’s easement allowed continued public use; Oregon Supreme Court held Ordinance 1439 not ultra vires; damages awarded and fees set, but remanded for fee reapportionment.
- First Amendment retaliation claim: magistrate awarded damages and fees; on appeal, court reversed the retaliation ruling and remanded for fee reapportionment to reflect WLCP’s success only on the fourth and fifth claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WLCP’s federal takings claim is cognizable under the Fifth Amendment | WLCP argues off-site improvements constitute a taking | City contends no cognizable taking since no real-property dedication | No cognizable Fifth Amendment taking; Nollan/Dolan not extended to this scenario |
| Whether WLCP’s state takings claim under Oregon Constitution is cognizable | WLCP asserts inverse condemnation under state law | City contends claim not cognizable | Claim dismissed affirmed; not cognizable under Oregon Constitution |
| Whether Ordinance 1439 vacation of Greene Street was ultra vires | WLCP urged ordinance was ultra vires and void | City argued ordinance was valid | Ordinance not ultra vires; vacation valid; no taking on remand; remand for related fee issues persists |
| Whether WLCP is entitled damages and attorney’s fees for Greene Street claims | WLCP seeks damages and full fee award | City opposes and seeks fee limitations | Damages affirmed; remand for reapportionment of $165,000 attorney’s fees to reflect limited success on claims 4–5 |
| Whether WLCP’s First Amendment retaliation claim supports relief and fees | WLCP claims retaliation by city official affected its interests | No protected conduct; action not inherently expressive | Reversed; no First Amendment protected conduct; remand for fee reapportionment restricted to claims 4–5 |
Key Cases Cited
- Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (rough-proportionality requiring dedication of real property; taking analysis limited to real-property deductions)
- Dolan v. City of Tigard, 512 U.S. 374 (1994) (requires rough proportionality between condition and impact on development; real-property deduction framework)
- Lingle v. Chevron USA, Inc., 544 U.S. 528 (2005) (limits extension of takings theories beyond established real-property dedications)
- Aetna Life Ins. Co. v. Bayona, 223 F.3d 1030 (9th Cir. 2009) (recognizes that the court may affirm on any record-ground-supported basis)
- Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006) (First Amendment protection limited to inherently expressive conduct)
- Texas v. Johnson, 491 U.S. 397 (1989) (free expression protected even when controversial)