The regulatory saga of the West Linn Corporate Park appears to be over – the US Supreme Court issued an order today declining to review the 9th Circuit’s decision in the case largely putting an end to the litigation that began in 2001. The order leaves in place the 9th Circuit’s unpublished opinion that affirmed in part, reversed and remanded in part and dismissed in part a Federal district court opinion. The only issues still alive appear to be the requirement for the District Court to reapportion some attorney’s fees.
The case involved questions of takings law that had been the subject of discussion among Oregon property interest lawyers for some time. The case was originally filed in state court, as required by Williamson Planning Comm’n v. Hamilton Bank, 473 US 172 (1985), but the City removed it to federal court, which led to a variety of arcane questions regarding exhaustion, but the key question involved how to evaluate conditions imposed on development that required a developer to pay money or to build improvements, such as highway improvements or sewer and water pipes, that are not located on the developing property.
The West Linn Corporate Park wanted those types of development conditions to be subject to the heightened Dolan/Nollan level of review, and the Oregon case law supported that view. In particular, the Oregon Court of Appeals decision in Clark v. City of Albany, 137 Or App 293, 904 P2d 185 (1995), had held that, in evaluating whether a taking had occurred “we see little difference between a requirement 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 9th Circuit certified the question to the Oregon Supreme Court, which held, in West Linn Corporate Park v. City of West Linn, 349 Or 58, 240 P3d 29 (2010), that Clark was incorrect and that such conditions are not subject to Dolan/Nollan type review based on more recent US Supreme Court precedent, such as Lingle v. Chevron USA Inc., 544 US 528, 548, 125 S Ct 2074, 161 L Ed 2d 876 (2005), and Monterey v. Del Monte Dunes at Monterey, Ltd., 526 US 687, 702, 119 S Ct 1624, 143 L Ed 2d 882 (1999).
The US Supreme Court’s denial of certiorari leaves in place the Oregon Supreme Court’s discussion of both Oregon and federal takings law and that discussion is more favorable to cities and regulatory entities than to developers. That Oregon Supreme Court decision can be found at the following link: http://www.publications.ojd.state.or.us/S056322.html.
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