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Dodd v. Hood River County

filed: June 29, 1995.


Appeal from the United States District Court for the District of Oregon. D.C. No. CV-91-01157-REJ. Robert E. Jones, District Judge, Presiding.

Before: Ruggero J. Aldisert*fn1 , Thomas Tang and David R. Thompson, Circuit Judges. Opinion by Judge Aldisert; Dissent by Judge Tang.

Author: Aldisert

ALDISERT, Circuit Judge.

This appeal requires us first to decide whether the district court erred in dismissing for lack of ripeness the Fifth Amendment taking claim brought by Appellants Thomas and Doris Dodd, owners of real estate in Hood River County, Oregon. If we conclude that the issue is now ripe for decision, we must then decide what contentions may now be met on the merits, and if so, whether we should meet the merits or permit the District Court to do so in the first instance. For the reasons set forth below, we affirm in part and vacate in part the judgment of the district court and remand for further proceedings consistent with this opinion.


In November 1983, the Dodds purchased 40 acres of land in a Forest Use Zone in Hood River County, Oregon for $33,000, intending to build a retirement home. Buyers of land in the Forest Use Zone at that time were on notice that the property was zoned exclusively for forest use, that the State had outlined mandatory goals for the management of forest use land, that the Oregon Land Use Board of Appeals ("LUBA") had issued an opinion binding Hood River County to adopt the restrictive zoning ordinance, and that the County was in the process of adopting that ordinance. The present ordinance prohibits construction of dwellings on land zoned for forest use unless the dwellings are "necessary and accessory to forest use." Hood River Co. Zoning Ord. § 5.10(I)(1).

Oregon maintains a comprehensive system of land use regulation that requires coordination between state and local government agencies. The State Land Conservation and Development Commission ("State Commission") adopts a framework of mandatory state-wide land use planning goals, and reviews for compliance with those goals the comprehensive land use plans of local governments. Or. Rev. Stat. §§ 197.225 and 197.040(2)(d); see Alexanderson v. Board of Comm'rs for Polk County, 289 Ore. 427, 436, 616 P.2d 459, reh'g denied, 290 Ore. 137, 619 P.2d 212 (1980).

In 1975, the State Commission adopted Goal 4, which defined forest lands, detailed the permissible uses allowed on forest land and provided guidelines for planning and implementation.*fn1 In February 1983, LUBA interpreted Goal 4 as permitting the construction of dwellings in Forest Use Zones only if the buildings were "necessary and accessory to forest use." Lamb v. Lane County, 7 Or. LUBA 137, 143 (1983). Pursuant to the state schema of land use regulation, and prior to the Dodds' purchase of the property in November 1983, Hood River County initiated the process of adopting a new complying ordinance. The County published notices of the proposed changes, and informed affected land owners, including the Dodds' predecessor-in-interest.

No one gave actual notice to the Dodds that the County was considering changing the land use restrictions relative to the property. They received a report dated July 7, 1983 from the County Sanitarian stating that the parcel was suitable for a septic system. On January 24, 1984, an employee of the County Planning Department signed a Land Use Compatibility Statement stating that a proposed single-dwelling residence on the property was compatible with State-wide Land Use Planning Goals in existence at that time. On February 10, 1984, the County Sanitarian sent a letter to the Dodds stating their plan to build in two years "would appear to leave opportunity for the water supply system to be developed." However, the record demonstrates that no county official represented that the necessary building permits would be issued.

In December 1984, the County Board of Commissioners approved the ordinance requiring that forest dwellings be allowed in forest use zones only where "necessary and accessory" to forest use.*fn2 In January 1985, the State Commission acknowledged that Hood River County's ordinance was in compliance with the state's planning goals.

Some six years passed before the Dodds made their initial inquiry with the County Planning Department about the construction of a dwelling on their property. In 1990 they filed and were denied applications for land use permits, variances, zone changes and comprehensive plan changes. Pursuant to Section 72.40 of the Zoning Ordinance, the Dodds appealed to the County Planning Commission. After conducting public hearings on the Dodds' requests, the County Planning Commission upheld the Planning Director's decision in April 1991. Thereafter, the Dodds appealed to the Board of County Commissioners, which conducted a public hearing, considered the record before the Planning Commission, and in July 1991, upheld the Planning Commission's decision.

In August 1991, the Dodds filed a Notice of Intent to Appeal with LUBA, which under state law has exclusive jurisdiction to review land use decisions. Or. Rev. Stat. § 197.825. In their Petition for Review dated November 12, 1991, the Dodds contended that the County improperly construed the zoning requirements and issued a decision unsupported by substantial evidence. Pendent to these claims, the Dodds asserted a claim under the Oregon taking clause. Article I, Section 18 of the Oregon Constitution provides: "Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered[.]" LUBA has subject matter jurisdiction over federal and state constitutional claims. Or. Rev. Stat. § 197.835(7)(a)(E); see Dunn v. City of Redmond, 303 Ore. 201, 735 P.2d 609 (1987).

The Dodds did not pursue the taking claim under the Fifth Amendment of the United States Constitution at that time, making a specific reservation in their Petition for Review in which they "expressly reserved their right to have their federal claims adjudicated in federal court."

LUBA affirmed the County's decisions, concluding: (1) the County interpreted and applied the "necessary and accessory" test in a manner consistent with that required by Oregon's appellate courts; (2) the County did not err in finding that the Dodds' proposed dwelling was not "necessary and accessory" to forest use; and (3) because the timber on the property had a value of approximately $10,000, there was no denial of a substantial beneficial use of the property and thus, no regulatory taking under the Oregon taking clause. Dodd v. Hood River County, 22 Or. LUBA 711 (1992). The Dodds appealed the LUBA decision to the Oregon Court of Appeals.

The Court of Appeals affirmed, determining that there had been no taking under the Oregon Constitution and rejecting the Dodds' argument that the regulations did not advance a legitimate governmental interest because the County allowed existing residences to remain as nonconforming uses in a Forest Use Zone. Dodd v. Hood River County, 115 Ore. App. 139, 143, 836 P.2d 1373 (1992). The Dodds appealed to the Supreme Court of Oregon which, on July 22, 1993, also affirmed. Dodd et al. v. Hood River County et al., 317 Ore. 172, 855 P.2d 608 (1993).

Meanwhile, as the state proceeding was ongoing, the Dodds filed a complaint under 42 U.S.C. § 1983 on November 5, 1991 in federal district court against the County, asserting violations of substantive due process, equal protection and the federal taking clause of the United States Constitution as well as the Oregon taking clause. The State of Oregon intervened as a party defendant. In August 1992, the district court granted the parties' joint request for a stay pending the resolution of matters before the Oregon state court system.

In October 1992, the County and State moved for summary judgment. In January 1993, the district court heard and decided the motion at a time prior to the final decision of the Oregon Supreme Court. It dismissed as unripe the Dodds' Fifth Amendment taking claim, and entered summary judgment in favor of the County and State on all other counts. The Oregon Supreme Court has now decided the appeal adversely to the Dodds.

We are to decide whether the Dodds were required to pursue other remedies or take other action in the state court system before seeking relief in the federal court. If no further action by them was required, we are to determine the effect of the state court actions on the Dodds' federal claim, and if the federal claim is still viable we must decide whether we or the district court should consider the claim in the first instance.

Jurisdiction was proper in the district court under 28 U.S.C. § 1343 (a)(3). We have appellate jurisdiction under 28 U.S.C. § 1291. This appeal was timely filed under Rule 4(a), Federal Rules of Appellate Procedure. This court reviews de novo a district court's order of summary judgment. McMillan v. Goleta Water Dist., 792 F.2d 1453, 1456 (9th Cir. 1986), cert. denied, 480 U.S. 906, 94 L. Ed. 2d 519, 107 S. Ct. 1348 (1987). Ripeness is a question of law, also reviewed de novo. Herrington v. County of Sonoma, 857 F.2d 567, 568 (9th Cir. 1988), cert. denied, 489 U.S. 1090, 103 L. Ed. 2d 860, 109 S. Ct. 1557 (1989).

The federal complaint alleges that the County and State deprived the Dodds' of federal constitutional protections by taking their property without just compensation in violation of the Fifth and Fourteenth Amendments. The Dodds contend the Hood River County zoning ordinance, as applied to their property, constitutes a taking. The district court dismissed the taking claim without prejudice on grounds of ripeness while the Dodds' appeal to the Oregon Supreme Court was pending. It dismissed because " [Williamson County Regional Planning Comm'n v.] Hamilton Bank [of Johnson City, 473 U.S. 172, 87 L. Ed. 2d 126, 105 S. Ct. 3108 (1985),] at least requires [the appeal to the Oregon Supreme Court] to be completed for plaintiffs' fifth amendment claim to be ripe." Opinion and Order at 5. Subsequent to the district court's dismissal without prejudice, the Oregon Supreme Court decided the appeal, but the County and State continue to challenge the ripeness of the Dodds' Fifth Amendment claim.


The decision in Williamson County, 473 U.S. 172, 87 L. Ed. 2d 126, 105 S. Ct. 3108 (1985), established two distinct requirements for taking claims under the rubric of ripeness:

First, "the government entity charged with implementing the regulations [must have] reached a final decision regarding the application of the regulations to the property at issue." 473 U.S. at 186.

Second, plaintiffs must have sought "compensation through the procedures provided by the State for obtaining such compensation." 473 U.S. at 195.

Both the final decision and compensation elements must be ripe before the claim is justiciable. We consider each in turn.

The final decision element is well-developed and easily applied here. Beginning with Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978), Agins v. City of Tiburon, 447 U.S. 255, 65 L. Ed. 2d 106, 100 S. Ct. 2138 (1980), and Hodel v. Virginia Surface Min. & Reclamation Ass'n. Inc., 452 U.S. 264, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981), the Court has declined to rule on taking claims when it believed the property owner had not received a final and definitive decision from a land use regulatory body on development of the property at issue. In Williamson County, the taking claim was unripe because there remained the "potential for . . . administrative solutions." 473 U.S. at 187 (landowner failed to seek variances that could have allowed development). In applying the final decision requirement, we have emphasized that local decision-makers must be given the opportunity to review at least one reasonable development proposal before we will consider ripe an as-applied challenge to a land use regulation. See, e.g., Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498, 503 (9th Cir. 1990), cert. denied, 502 U.S. 943, 116 L. Ed. 2d 333, 112 S. Ct. 382 (1991); Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir.), modified, 830 F.2d 968 (1987), cert. denied, 484 U.S. 1043 (1988). Finality also requires the local government to determine the type and intensity of development that land use regulations will allow on the subject property; this determination helps the court evaluate whether regulation of the subject property is excessive by identifying the extent of the regulation. See Herrington v. County of Sonoma, 857 F.2d at 570; Lai v. City and County of Honolulu, 841 F.2d 301, 303 (9th Cir.), cert. denied, 488 U.S. 994, 102 L. Ed. 2d 586, 109 S. Ct. 560 (1988). Thus, a landowner may need to submit modified development proposals that satisfy the local government's objections to the development as initially proposed. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1501 (9th Cir. 1990); MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351-53, 91 L. Ed. 2d 285, 106 S. Ct. 2561 (1986).

Here, the final decision requirement was met. The Dodds filed land use and conditional use permit applications, and petitioned for zone and comprehensive plan changes with the County. These applications were denied in succession by the Planning Director, the County Planning Commission, and the Board of County Commissioners. The State of Oregon reached a final and definitive position on the Dodds' applications and petitions.


Once the appropriate state agency reaches a final decision, the second ripeness requirement of Williamson County, the compensation element, is triggered. A federal court lacks jurisdiction to consider an as-applied regulatory taking claim until a determination is reached that "just compensation" has been denied by the state:

Because the Fifth Amendment proscribes taking without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a Section 1983 action.

473 U.S. at 194 n. 13 (emphasis added). In Williamson County, the Court concluded that Hamilton Bank's taking claim was not ripe because the Bank failed to utilize available state procedures:

Under Tennessee law, a property owner may bring an inverse condemnation action to obtain just compensation for an alleged taking of property under certain circumstances . . . Until it has utilized that procedure, its taking claim is premature.

Id. at 196-97. See also Jama Const. v. City of Los Angeles, 938 F.2d 1045, 1047-48 (9th Cir. 1991) (Dismissed as unripe where plaintiff "did not seek compensation through California procedures before bringing its federal action."), cert. denied, 503 U.S. 919, 117 L. Ed. 2d 516, 112 S. Ct. 1293 (1992); Bateson v. Geisse, 857 F.2d 1300, 1306 (9th Cir. 1988) (Because Montana recognizes inverse condemnation under the State Constitution, plaintiff must "pursue [that claim] before he can state a [federal] taking claim.").

Oregon argues that the Dodds' Fifth Amendment claim is unripe because they have yet to pursue compensation in state court under all available state procedures. It contends that available state procedures include an action ...

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