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Ninth Circuit Finds No “Rough Proportionality” Obligation For Off-Site Improvements

In West Linn Corporate Park LLC v. City of West Linn, the 9th Circuit issued an unpublished opinion agreeing with the Oregon Supreme Court’s conclusion that the rough proportionality analysis required by Nollan and Dolan does not apply in situations where the government conditions development to construct off-site improvements with personal property (money, piping, sand and gravel, etc.), but did not involve dedication of any interest in its own real property. 

In a footnote, the court went on to explain that this holding did not foreclose a regulatory taking claim under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), or a due process claim against the city for imposing arbitrary conditions of development.  Lingle v. Chevron USA, Inc., 844 US 538 (2005).  Given its finding that no state or federal taking occurred, the court did not need to decide a constitutional question and vacated the magistrate judge determination that the claim was not ripe. 

The 9th Circuit agreed with the Oregon Supreme Court that the failure to follow the landowner consent requirements for a city-initiated vacation gave rise to an actionable damages claim.  The 9th Circuit found that the magistrate’s determination that the City could vacate the street and then requiring a public easement to accommodate the street effected a taking was not erroneous and affirmed the $5,100 damage award to West Linn Corporate Park (WLCP).  However, the 9th Circuit did not affirm the magistrate’s award of $165,000 in fees for First Amendment retaliation against WLCP by one of its employees, determining that the First Amendment protects only conduct that is “inherently expressive” and convey a “particularized message.”  Here, the public works director’s refusal to release a performance bond posted by WLCP until WLCP dedicated its interest in the disputed intersection did not equate to petitioning the government for redress of grievances.  Because there was no First Amendment conduct at issue, the 9th Circuit remanded the decision to the district court to reapportion the fee award to include only the vacation and easement takings issues.

West Linn Corporate Park LLC v. City of West Linn,  ___ F. 3d ___ (9th Cir. Nos. 0536031, 05-36062, April 2011).

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