Opinion
No. CV-99-1295-HU
December 21 2000
Kelly W.G. Clark, O'DONNELL CLARK, LLP, Portland, Oregon, for plaintiff.
Thomas Sponsler, COUNTY ATTORNEY FOR MULTNOMAH COUNTY, Sandra N. Duffy Deputy County Attorney, Portland, Oregon, for defendants.
OPINION ORDER
Plaintiff Frevach Land Company brings this 42 U.S.C. § 1983 action against Multnomah County's Department of Environmental Services, Land Use Planning Division ("the County"), the County's Planning Director Kathy Busse, and the County's Land Use Code Enforcement Planner Lisa Estrin. Plaintiff brings First Amendment, equal protection, due process, and takings claims as part of the section 1983 action. As supplemental state claims, plaintiff brings an intentional interference with economic relations claim and a petition for writ of review. Additionally, plaintiff brings separate claims for declaratory judgment and injunctive relief.
Previously, plaintiff moved for a preliminary injunction on three of the claims: the petition for writ of review, and the declaratory and injunctive relief claims. In an April 14, 2000 Opinion Order, I denied plaintiff's motion because I concluded that even though the likelihood of plaintiff prevailing on the merits of the petition for writ of review was strong, plaintiff's harm was solely economic. Additionally, I concluded that I lacked jurisdiction over the declaratory and injunctive relief claims because in those claims, plaintiff attacked conditions in a permit issued in 1997 and had failed to properly challenge them within sixty days of the permit's issuance in accordance with the writ of review statutes. Alternatively, I concluded that plaintiff could not prevail on those claims because even if construed as a collateral attack on the permit conditions, such an attack was untimely.
The April 14, 2000 Opinion Order contains the relevant background facts to the dispute and need not be repeated here. Presently, the County moves to dismiss the petition for writ of review and all defendants move for summary judgment on the section 1983 claims. Plaintiff moves to amend its complaint. For the reasons discussed below, I deny the motion to dismiss, I grant in part and deny in part the motion for summary judgment, and I deny the motion to amend.
I. Proceedings After April 14, 2000 Opinion Order
In addition to issuing the Opinion Order on April 14, 2000, I also issued an Order allowing the writ of review, giving the County until May 1, 2000, to return the record of its actions to the court for review. I issued the writ of review on April 17, 2000. On May 1, 2000, the County certified that the record it submitted as part of the preliminary injunction proceedings, was the complete record on review. On May 11, 2000, I issued an Order declaring that based on the record submitted, Stop Work Order 3 (SWO3), was void and should be annulled because the County had failed to comply with its own regulations requiring a finding or determination of at least one of three emergency criteria before issuing a stop work order.
On May 23, 2000, plaintiff was granted leave to file a First Amended Complaint in which plaintiff realleged its declaratory relief and injunctive relief claims, even though I had previously determined that they were untimely or that I lacked jurisdiction to consider them. Plaintiff also added new allegations to those claims. Additionally, plaintiff added a claim challenging Stop Work Order 2 (SWO2)
Non-expert discovery in the case closed on July 11, 2000. The present motions were then filed and briefed.
II. Motion to Dismiss Writ of Review
The County moves to dismiss the writ of review issued on April 17, 2000. The County continues to argue, as it did at the preliminary injunction phase of this case, that this Court lacks jurisdiction to entertain the petition for writ of review. Plaintiff contends that the County's motion to dismiss should not be considered because it is not the proper vehicle for challenging a claim in which the court has already issued a decision on the merits. At oral argument, the County explained that were the petition for review pending in state court, the local practice is to file a motion to dismiss the writ after it has been issued, but before the court renders a decision on the merits. Under the County's reasoning, the County should have filed its motion to dismiss after April 17, 2000, but before May 11, 2000. It did not. Thus, I agree with plaintiff that a motion to dismiss is not the proper device for the County to use against the writ of review because an order on the merits of the petition for the writ has already issued.
However, I disagree with plaintiff that I cannot construe the motion to dismiss as a motion for reconsideration. While plaintiff correctly notes that motions for reconsideration are not expressly sanctioned under the Federal Rules of Civil Procedure, this court has a history of accepting motions for reconsideration and I see no reason to stop that practice now. Because the County argues that my determination of the petition for writ of review was based on clear error, it is appropriate to entertain the motion. See, e.g., School Dist. No. 1J v. AcandS. Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (reconsideration is appropriate if the district court committed clear error)
A. Jurisdiction
The County argues that this Court lacks jurisdiction to consider the petition for writ of review because the petition was not timely filed. Previously, the County had argued that the issuance of the writ of review was the jurisdictional act which needed to occur within sixty days of the date of the action sought to be reviewed. I rejected that argument and concluded that petitioner need only "make" the petition by filing it with the court, within sixty days of the date of the action sought to be reviewed. Because plaintiff filed this petition for writ of review on August 12, 1999, challenging Busse's July 23, 1999 decision to uphold SWO3, I concluded that the petition was timely "made" and that I had jurisdiction over it.
The County suggests that I misunderstood its argument. The County states that it does not contend that the issuance of the writ is the jurisdictional act, but rather, it is the court clerk's "filing" of the petition which is the jurisdictional act and by which the sixty-day timeline is measured. I reject this argument.
Oregon's writ of review statutes are found at O.R.S. 34.030 through O.R.S. 34.100. As explained in the April 14, 2000 Opinion Order, the writ of review process "is a creature of statute, and the trial court has authority to act only when the statutory requirements have been met."Shevchynski v. City of Eugene, 157 Or. App. 355, 360, 970 P.2d 237, 240 (1998)
I previously explained the various statutory requirements in the April 14, 2000 Opinion Order and will not repeat all of them here. Two provisions, however, are central to resolution of the County's argument and are worth examining again. The first relevant provision is the sentence which states that" [a] writ [of review] shall not be allowed unless the petition therefor is made within 60 days from the date of the decision or determination sought to be reviewed." O.R.S. 34.030. The statutory scheme provides that after the petition is "made", and upon satisfaction of a variety of criteria specified in O.R.S. 34.030, 34.040, and 34.050, the court allows the writ and issues an order allowing the writ. O.R.S. 34.040, 34.080. The second relevant provision is the sentence which states that "[u]pon the filing of the order allowing the writ [presumably by the court or the court clerk], and the petition and undertaking of the plaintiff, the clerk shall issue the writ, as ordered." O.R.S. 34.080.
Plaintiff argues that the "making" of a petition referred to in O.R.S. 34.030, occurred in this case when it filed its combined Complaint/Petition for Writ of Review in Multnomah County Circuit Court on August 12, 1999. The County argues that the act relevant to the sixty-day period referred to in O.R.S. 34.030, is the "filing" of the petition by the court or court clerk, along with the order allowing the writ and the undertaking, as described in O.R.S. 34.080. I agree with plaintiff.
First, the jurisdictional language is found in O.R.S. 34.030, not O.R.S. 34.080. The jurisdictional provision indicates that it is the petitioner who "makes" the petition; that is, it is the petitioner who performs the jurisdictional act. Under O.R.S. 34.080, the statute relied on by the County, the "filing" of the petition is performed by the court or the court clerk, not the petitioner, and is therefore contrary to what the Legislature envisioned in O.R.S. 34.030. This is underscored by a passage in Shipp v. County of Multnomah, 133 Or. App. 583, 891 P.2d 1345 (1995), the case relied on by the County. There, the court stated:
The requirement that the petition for writ of review be filed within 60 days of the lower tribunal's order is not a Statute of Limitations; it is a condition precedent to the conferring of jurisdiction in the circuit court and, unlike a Statute of Limitations, cannot be waived. The filing of the petition is akin to a notice of appeal; if it is not timely filed, the appellate court does not acquire jurisdiction, even if the opposing party acquiesces. Its function is not to give notice to the opposing party within the specified time.Id. at 590-91, 891 P.2d at 1350. A notice of appeal is something filed by a party, not a court. Given that the "filing," as referred to by theShipp court, of the petition for writ of review under O.R.S. 34.030, is like a notice of appeal, it is clearly something performed by the petitioner, not the court.
Second, under the relevant provisions, the plaintiff "makes" the petition to the court and then the court, after determining that a writ should be allowed, files an order allowing the writ, along with the undertaking and the petition. The County's argument that the jurisdictional act is that of the court, or the court clerk, "filing" the petition under O.R.S. 34.080, leaves the petitioner at the mercy of the court's timeliness. A litigant does not control the court's calendar and if by virtue of a heavy docket or through inadvertence or neglect, the court fails to file the order allowing the writ, the undertaking, and the petition within the sixty days, the petitioner would be left without a remedy, through not fault of the petitioner. This construction of the statute makes no sense.
Third, the relevant cases equate "made," as used in O.R.S. 34.030, with a "filing" performed by the petitioner, separate and apart from the "filing" of the petition, the order allowing the writ, and the undertaking, performed by the court or the court clerk under O.R.S. 34.080. In the most recent case, the Oregon Court of Appeals noted that the "petitioners filed a petition in the Lane County Circuit Court, asking the court to issue a writ of review to the defendants[.]"Shevchynski, 157 Or. App. at 358, 970 P.2d at 239 (emphasis added). This "filing" was an act done by the petitioners under O.R.S. 34.030, and is not the "filing" by the court or the court clerk in O.R.S. 34.080.
In two earlier cases, Oregon courts make similar references. In one case, the Oregon Supreme Court noted that within sixty days of the challenged decision, "plaintiffs filed a petition in the circuit court of Washington County for a writ of review of the action of the Planning Commission." Meury v. Jarrell, 269 Or. 606, 607, 525 P.2d 1286, 1286 (1974) (emphasis added). Here again the court refers to an act of "filing" performed by the petitioner, not the court. And, in Meury, it was the petitioner's act of filing, not the court's, that was within the sixty day timeline. Id.
In the other earlier case, the Oregon Court of Appeals stated that "petitioners filed a petition for writ of review alleging that the Council violated certain procedural and substantive requirements in reaching its decision." Northwest Envtl. Defense Ctr. v. City Council for the City of Portland, 20 Or. App. 234, 236, 531 P.2d 284, 285 (1975) (emphasis added) Under this description, the petitioner "filed" a petition for writ of review to start the action.
Even in Shipp, the case relied on by the County, the court suggests that the act of "making" a petition for a writ of review is the "filing" of such a petition by the petitioner. There, the court noted that a complaint was served on the defendant, "unlike a petition for writ of review, which is filed and presented to the court." Id. at 587, 891 P.2d at 1348 (emphasis added). The court also stated that the court acquires jurisdiction over a writ of review petition when the petition is "filed with the court within 60 days from the date of the decision sought to be reviewed[.]" Id. at 589, 891 P.2d at 1349 (emphasis added). If the court were referring to the petition filed by the court under O.R.S. 34.080, it would likely have said that it was "filed by the court within 60 days" rather than "filed with the court within 60 days." Stating that the petition is filed "with" the court suggests that it is someone other than the court or the court clerk doing the filing.
While no Oregon case expressly holds that the "making" of a petition for writ of review under O.R.S. 34.030 is the same as "filing" a petition for writ of review, the cases cited above indicate that Oregon appellate courts assume that a petitioner's "making" of a petition under O.R.S. 34.030, is equivalent to a petitioner's "filing" of a petition.
At oral argument, the County maintained that the "making" of a petition for writ of review was not a "filing" because the "making" of a petition under O.R.S. 34.030 occurs when a petitioner appears at the court's ex parte docket with the petition, the court reviews it at that time for compliance with O.R.S. 34.030, 34.040, and 34.050, and, if appropriate, the court signs the order allowing the writ upon which the court clerk "files" the petition, the undertaking, and the order allowing the writ under O.R.S. 34.080.
The County did not support its representation with any local rules of practice from any Oregon court. While for the purposes of this motion I accept the County's representation as accurate for practice in Multnomah County Circuit Court, I find no basis for the County's argument in the statute or the above-cited cases. Even if Multnomah County Circuit Court has adopted the "ex parte docket" as the procedure for presentation of a petition for writ of review, the issue here is what is required by statute, not what the local rules provide. Given that the statute makes no reference to an ex parte presentation, and given the cases cited above which suggest that the writ of review process begins with the "filing" of a petition by the petitioner, I find the County's argument unpersuasive.
The County also argued that it was improper for plaintiff to have combined in one pleading the petition for writ of review with legal claims set forth in a complaint. The County cites no rule or statute supporting this argument and I have found none. Additionally, I note that in Shipp, while the court ultimately held that the plaintiff in that case could not relate the petition for writ of review back to the originally filed declaratory judgment action, the court made no suggestion that combining the two actions was improper.
The County also relies on statutory construction principles to argue that because the legislature used the word "made" in O.R.S. 34.030 and "filed" in O.R.S. 34.080, the word "made" must refer to something other than "filed." See Lindsey v. Farmers Ins. Co. of Or., No. CA A106293, 2000 WL 1533127, at *3 (Or.Ct.App. Oct. 18, 2000) (when the legislature uses different language in similar statutory provisions, it is presumed to have intended different meanings)
In interpreting a statute, "the court's task is to discern the intent of the legislature." Portland Gen. Elec. Co. v. Bureau of Labor and Indus., 317 Or. 606, 610, 859 P.2d 1143, 1145 (1993). The first level of analysis is to examine the text and context of the statute. Id., 859 P.2d at 1146. The text itself is the best evidence of the legislature's intent. Id. However, in analyzing the text, the court may consider certain "rules of construction of the statutory text that bear directly on how to read the text." Id. at 611, 859 P.2d at 1146. One such rule is that "words of common usage typically should be given their plain, natural, and ordinary meaning." Id.
Also at the first level of analysis is an examination of "the context of the statutory provision at issue, which includes other provisions of the same statute and other related statutes." Id. As explained by the court, "[j]ust as with the court's consideration of the text of a statute, the court utilizes rules of construction that bear directly on the interpretation of the statutory provision in context." Id. If the legislature's intent is clear from the first level of inquiry, no further inquiry is necessary. Id.
At issue here is the word "made." "Made" is the past tense and past participle of "make." In the American Heritage Dictionary of the English Language, plain and ordinary meanings of the word "make" take up more than a full column of small print text of an 8 1/2 by 11 inch page, and include "to cause to exist or happen; bring about; create;" "to cause to be or become;" and "to achieve, produce, or attain[.]" American Heritage Dictionary of the English Language 1085-86 (3d ed. 1996). While the word "file" is not among the plain and ordinary meanings given, it is clear that "make" is an enormously broad word, encompassing a variety of meanings.
Given the text and context of the disputed statutory provision, the legislature's intent was clear: while the "filing" of a petition by the court or the court clerk along with the undertaking and the order allowing the writ, may occur only by the specific process of "filing" the documents, the petition for writ of review may be "made" by a broader variety of methods, including the "filing" of a petition by the petitioner with the court, or as the County suggests, by initially appearing at a court's regularly scheduled ex parte docket with the petition in hand and then having the court or court clerk file it. Thus, although the word "made" has many meanings, some different than the meaning of "filed," it encompasses the act of "filing" and plaintiff's act here of filing the petition with the circuit court within sixty days of Busse's decision to uphold SWO3, falls within the purview of O.R.S. 34.030.
The County further contends that if the statutes are interpreted to require two "filings," one by the petitioner and another by the court, such a construction is unreasonable because it creates a redundancy.See, e.g., Matter of Phelps, 122 Or. App. 410, 415, 857 P.2d 900, 902 (1993) (court should avoid construing statutes in a way that renders any provision meaningless); O.R.S. 174.010 (where there are several provisions of a statute, court should endeavor to adopt a construction that will, if possible, give effect to all provisions); but see State v. Allison, 146 Or. App. 241, 247, 923 P.2d 1224, 1228 (1996) ("[L]egislation is not always free of redundancy.").
I agree with the County that equating "making" in O.R.S. 34.303 with "filing" means that two "filings" occur. I do not, however, agree that because there are two filings, they are redundant. Under O.R.S. 34.030, the petitioner files the petition to start the action and trigger jurisdiction. Later, and only if the court issues an order allowing review, the court or the court clerk files the petition under O.R.S. 34.080, along with the undertaking and the order allowing review, to start the actual review process. Thus, there are two different actions and they are not redundant.
I note that even in Shipp the court noted two different filings. First, as noted above, the court stated that a petition for writ of review was "filed and presented to the court" by the petitioner. Shipp, 133 Or. App. at 587, 891 P.2d at 1348. Next, the court remarked thatafter the court had entered an order allowing the writ, the order, the petition, and the undertaking are filed. Id. at 589, 891 P.2d at 1349. Thus, Shipp itself envisions two filings.
In summary, I reject the County's argument that I lack jurisdiction to entertain the petition for writ of review. The plain meaning of the statutory provision, the logical interpretation, and the relevant caselaw, suggest that plaintiff's filing the petition on August 12, 1999, was the jurisdictional act required under O.R.S. 34.030 and as such, the act was timely.
B. Sufficiency of April 14, 2000 Order Allowing Writ
The County next attacks the sufficiency of my April 14, 2000 Order allowing the writ because the Order does not expressly reflect that all of the requirements for issuance of the writ have been met. Under the statutory scheme, a writ of review "shall be allowed," when the petition for the writ (1) describes the challenged decision or determination with convenient certainty and sets forth the errors alleged to have been committed therein; (2) is signed by the plaintiff or the attorney of the plaintiff; and (3) is verified "by the certificate of an attorney to the effect that the attorney has examined the process or proceeding, and the decision or determination therein, and that it is erroneous as alleged in the petition." O.R.S. 34.030.
The plaintiff must also file an undertaking. O.R.S. 34.050. Additionally, a substantial interest of the plaintiff must have been injured and "an inferior court including an officer or tribunal . . . in the exercise of judicial or quasi-judicial functions" must appear to have exceeded its jurisdiction, failed to follow the procedure applicable to the matter before it, made a finding or order not supported by substantial evidence in the whole record, improperly construed the applicable law, or rendered a decision that is unconstitutional. O.R.S. 34.040.
In the April 14, 2000 Opinion on the preliminary injunction motion, I carefully explained my reasoning in support of my conclusion that plaintiff had a likelihood of succeeding on the merits of the petition for review because the County had failed to follow the procedure applicable to the matter before it. I also explained that while the record revealed no expressly designated attorney verification, such an omission was not defective in light of Oregon Rule of Civil Procedure 17 and the presence of plaintiff's counsel's signature on the August 12, 1999 Petition/Complaint. See April 14, 2000 Opinion at p. 11 n. 1. The April 14, 2000 Order allowing the writ expressly stated that an undertaking had been filed. April 14, 2000 Order at p. 1.
The County supplies no authority to support its argument that the Order allowing a writ of review must expressly recite satisfaction of each of the statutory prerequisites. Reading the April 14, 2000 Opinion together with the April 14, 2000 Order shows that all of the requirements were met. Accordingly, I reject the County's argument.
C. Merits
As previously noted, in my May 11, 2000 Order, I concluded that upon review of the record, SWO3 was void because defendants failed to comply with the County's regulations requiring a finding or determination of at least one of three emergency criteria before issuing a stop work order. The County argues that my determination is erroneous and that there is no other basis for voiding SWO3.
Under the relevant statute, SWO3 can be voided for one or more of the following five bases: the County exceeded its jurisdiction, it failed to follow the procedure applicable to the matter before it, it made a finding or order not supported by substantial evidence in the whole record, it improperly construed the applicable law, or it rendered an unconstitutional decision. O.R.S. 34.040.
1. Exceeding Jurisdiction
There is no dispute that the Oregon Constitution confers certain legislative authority on the County. Or. Const., Art. VI sec. 10 (permitting county voters to adopt charters for county government); see also O.R.S. 203.035 (granting all counties legislative authority over matters of county concern, whether or not they have home rule). In 1966, Multnomah County voters adopted the Multnomah County Home Rule Charter which became effective January 1, 1967.
Section 2.10 of the Charter grants the County general legislative authority "over matters of county concern to the fullest extent permitted by the constitutions and laws of the United States and the State of Oregon [.]" Defts' App. to Motion to Dismiss at p. 56.
Under Multnomah County Code (MCC) § 29.305(C)(2), the County is authorized to stop work if an inspection reveals erosive conditions exceeding those prescribed by a particular grading and erosion control permit. Under MCC § 11.15.9052(E), the Code Enforcement Planner (CEP), may issue a stop work order if the CEP determines that irreparable harm will occur, the violation would be difficult to correct, or there is an immediate danger to health or safety. Additionally, the grading and erosion control permit at issue in this case ("the GEC permit") allowed a work stoppage if an inspection revealed work which was not included in the application or other applicable permits, or revealed excessive erosive conditions.
Clearly, if the County followed applicable procedures, it had jurisdiction to issue SWO3. But, even if the County did not follow applicable procedures, that determination, in and of itself does not mean that the County lacks jurisdiction to issue stop work orders or that the County exceeded its jurisdiction in this case. I conclude that the County did not exceed its jurisdiction.
2. Following Applicable Procedures
Defendants argue that under MCC § 29.305(C)(2) and the GEC permit itself, which, as noted above, allow a work stoppage when excessive erosive conditions are present, the only "applicable procedure" is the existence of such erosive conditions and that here, because a "substantial body of evidence" showing that work at plaintiff's property occurred outside the permit and excessive erosive conditions existed at the time SWO3 was issued, the County complied with the applicable procedures.
Assuming for the purposes of this motion that there is substantial evidence to support a finding of excessive erosive conditions at plaintiff's property, the language in MCC § 29.305(C)(2) indicates that a work stoppage "may" occur, not that it is mandatory. In the GEC permit, although "work will be stopped" upon a finding of excessive erosive conditions, no information is given as to the procedure for how the stoppage will occur.
As I interpret the County Code and the GEC permit, if the right excessive erosive conditions exist, a stop work order may be required. However, there is nothing in either MCC § 29.305(C)(2), or the GEC permit, suggesting that the procedural requirements of MCC § 11.15.9052(E) do not apply. The County, notwithstanding the authority granted to it in MCC § 29.305(C)(2), and notwithstanding the conditions in the GEC permit, still needed to follow its own procedures outlined in MCC § 11.15.9052(E) before issuing a stop work order. Because MCC § 11.15.9052(E) requires a finding of one of three emergency criteria and the County concedes no such finding was made, the County failed to follow its own code. I adhere to my earlier conclusion that SWO3 should be annulled on that basis.
3. Substantial Evidence
The County argues that substantial evidence supported the CEP's determination that plaintiff was violating the conditions in the GEC permit. Thus, the County maintains, SWO3 cannot be void for failure to be supported by substantial evidence in the record.
Again, I assume for the purposes of this motion that there is substantial evidence of plaintiff's GEC permit violations. But, the petition for writ of review seeks review of SWO3, not review of a notice of violation. Thus, what is at issue here is substantial evidence in support of SWO3, not substantial evidence in support of a violation. While evidence of GEC permit violations may be substantial evidence of a violation, issuing a stop work order requires evidence to support at least one additional finding: (1) a determination of irreparable harm; (2) difficulty to correct; or (3) immediate danger to health or safety. MCC § 11.15.9052(E). No such evidence is in the record. Accordingly, I conclude that there is no substantial evidence in the record to support the required underpinning of SWO3, and thus no substantial evidence to support the issuance of SWO3.
4. Construing Applicable Law
Based on their previous arguments, the County contends that it has properly construed the applicable provisions of the County Code because under MCC § 29.305(C)(2), the County can issue a stop work order without any of the express findings of irreparable harm, difficulty to correct, or harm to health and safety provided in MCC § 11.15.9052 (E), as long as there is excessive erosion. I disagree.
As explained above, I do not adopt the County's interpretation of the County Code. MCC § 11.15.9052(E) provides the procedural prerequisite for issuing a stop work order authorized under MCC § 29.305(C)(2) or the GEC permit. The County failed to properly construe applicable law when it determined that MCC § 11.15.9052(E) did not apply to the issuance of SWO3.
5. Unconstitutional Decision
Plaintiff argues that the issuance of SWO3 and its affirmance by Busse on appeal, were unconstitutional in violation of due process guarantees. Specifically, plaintiff alleges that SWO3 and Busse's decision are unconstitutional because they were made "on the record only, with no opportunity for an evidentiary hearing, cross examination, or other basic due process guarantees." First Am. Compl. at ¶ 25.
The appeal process is detailed in MCC § 11.15.9052(D)(4). Once a written appeal has been filed, the appellant has "45 days from the date of filing the written appeal to provide written documentation to the Planning Director in support of the appeal[.]" MCC § 11.15.9052(D) (4)(a). Next, if it is the property owner appealing, written notice and opportunity to comment on the appeal is given to the complainant, if known, and certain surrounding property owners. MCC § 11.15.9052(D) (4)(c)
The Planning Director is to consider any other written testimony submitted in support of and in opposition to the notice of violation. MCC § 11.15.9052(D)(4)(d). The Planning Director is to review all written evidence and determine by a preponderance of the evidence whether a violation has occurred. MCC § 11.15.9052(D)(4)(e). After review of the written testimony, the Planning Director serves the appellant and anyone who submitted evidence with a Decision of Appeal. MCC § 11.15.9052(D)(4)(f). In addition to this appeal procedure, a petition for writ of review may be made under the appropriate statutory provisions discussed above.
Oregon does not have a due process clause in its constitution. State v. Lyon, 65 Or. App. 790, 795, 672 P.2d 1358, 1360 (1983) ("The Oregon Constitution has no Due Process Clause."). Plaintiff's due process claim therefore necessarily arises under federal law.
"The Fourteenth Amendment places procedural constraints on the actions of government that work a deprivation of interests enjoying the status of `property' within the meaning of the Due Process Clause." Perkins v. City of West Covina, 113 F.3d 1004, 1010 (9th Cir. 1997) (internal quotation omitted), rev'd on other grounds, 525 U.S. 234 (1999). The procedural constraints require that the property's owner "be given notice and an opportunity to be heard at a meaningful time and in a meaningful manner."Schneider v. County of San Diego, 28 F.3d 89, 92 (9th Cir. 1994) (internal quotation omitted)
To state a procedural due process claim, plaintiff must show "(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; and (3) lack of process."Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (internal quotation omitted)
"[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Thus, "the timing and nature of the required hearing will depend on appropriate accommodation of the competing interests involved." Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982) (internal quotation and footnote omitted). Furthermore, "a state provides adequate [procedural] due process when it provides reasonable remedies to rectify a legal error by a local administrative body." Bello v. Walker, 840 F.2d 1124, 1128 (3d Cir. 1988) (internal quotation omitted)
Neither party has specifically addressed plaintiff's property interest. I conclude that plaintiff has a property interest protected by the United States Constitution and that SWO3 has interfered with that interest. See Harris v. County of Riverside, 904 F.2d 497, 503 (9th Cir. 1990) (holding that loss of use and enjoyment of land deprived property owner of a property interest that may be taken only in accordance with the Due Process Clause)
The more important question here is whether the "process" plaintiff received was constitutionally adequate. In addition to any materials already in the County's record, the appeal to the Planning Director provides for unlimited submission of written evidence, encompassing both evidence or argument. The question is whether this process, without presentation of live testimony or the opportunity to cross-examine witnesses, is constitutionally adequate.
In a 1976 case, the Supreme Court articulated a three-factor balancing test to apply in determining whether agency procedures are constitutionally adequate. The factors to be weighed are (1) the importance of the private interest that will be affected by the official action; (2)the risk of an erroneous deprivation of a property interest through the procedures used and the probable value of additional safeguards; and (3) the government's interest, including any monetary or efficiency costs associated with increased procedural safeguards. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The Ninth Circuit has noted that courts look to Mathews to determine the specific procedures that a hearing should entail. Brewster v. Board of Ed. of Lynwood Unified Sch. Dist., 149 F.3d 971, 983 (9th Cir. 1998), cert. denied, 526 U.S. 1018 (1999)
The Supreme Court "consistently has held that `some kind of hearing is required at some time before a person is finally deprived of his property interests.'" Memphis Light. Gas. and Water Div. v. Craft, 436 U.S. 1, 16 (1978) (quoting Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974)). But, the type of hearing required can be minimal. In Memphis Light, the Court held that the "opportunity for informal consultation with designated personnel empowered to correct a mistaken determination constitutes a `due process' hearing in appropriate circumstances." Id. at 16 n. 17.
Due process generally requires notice and a hearing before the deprivation. Perkins, 113 F.3d at 1010. Here, as discussed below, because a "hearing" in the traditional sense of the word is not required post-deprivation, it is also not required pre-deprivation. Notice, however, is a different due process requirement. Pre-deprivation notice may be dispensed with in certain situations such as those which "involve seizures that are necessary to an important public interest; present a special need for prompt action; and utilize legitimate force which the government strictly controls." Id.
If the County had made one of the three emergency criteria findings specified in MCC § 11.15.9052(E) in support of SWO3, SWO3 would have come within the recognized exceptions for pre-deprivation notice because any one of the three findings constitute a "special need for prompt action" or support a stoppage as "necessary to an important public interest." Even without one of the three emergency criteria, however, SWO3 may be upheld if evidence supports a determination that there was an "important public interest" or a "special need for prompt action." Evidence of excessive erosive conditions would meet the standard. That is, if the provisions in MCC § 11.15.9052(E) are met, the County has not only met the pre-deprivation due process requirements, it has exceeded them. Exceptions to pre-deprivation notice are not limited to emergency situations. Therefore, evidence of other non-emergency, but urgent or important interests may justify the lack of pre-deprivation notice.
While the County's evidence suggests that such conditions existed, plaintiff refutes these assertions and contends that it was acting within the GEC permit. Given the disputed evidence, I cannot conclude as a matter of law that excessive erosive conditions existed. If they did, there is no due process violation because of a lack of pre-deprivation notice. If they did not, plaintiff's due process rights have been infringed for failure to give pre-deprivation notice. Because I construe the County's motion to dismiss as a motion for reconsideration, I need not resolve the factual dispute given that there are other bases upon which to void SWO3 and my earlier Order voiding SWO3 remains in force.
The focus of plaintiff's due process argument, however, is on the post-deprivation procedures. I conclude that whether the County complies with MCC § 11.15.9052(E) or not, the post-deprivation process afforded for challenging a stop work order through an appeal to the Planning Director, along with the right to seek review through a writ of review, is constitutionally sufficient. In a 1995 case, the Fourth Circuit considered whether a written review procedure provided by the Federal Deposition Insurance Corporation after its termination of a bank's insured status, comported with due process. Doolin Sec. Sav. Bank v. FDIC, 53 F.3d 1395, 1403 (4th Cir. 1995). There, in applying theMathews balancing factors, the court found that although the plaintiff's interest in the proper risk classification was significant, the risk of erroneous deprivation was minimal and the public interest in expeditious review procedures was considerable. The risk of erroneous deprivation afforded by the written review procedure was minimal because first, the risk classification was based on a detailed, expert evaluation of the financial condition of the institution, and second, the determination involved no credibility assessments for which an oral hearing would be beneficial. Id.
Here, I reach the same result. While plaintiff has a significant interest in the development, use, and enjoyment of its property, the risk of erroneous deprivation with the current procedures is minimal because the action at issue is based on a determination by the CEP, plaintiff can submit whatever written evidence and argument it desires to the Planning Director on appeal, and there is no need for an oral hearing because there are no credibility determinations to be made. The public has a considerable interest in expeditious resolution of stop work orders. Given that plaintiff can then have the Planning Director's decision reviewed on a writ of review, the post-deprivation process comports with due process.
In summary, (1) the petition for writ of review claim is timely; (2) the April 24, 2000 Order allowing the writ, when construed with the April 14, 2000 Opinion, is sufficient; (3) the County did not exceed its jurisdiction in issuing SWO3; (4) the County failed to follow applicable procedures in issuing SWO3; (5) SWO3 was not based on substantial evidence of emergency conditions; (6) the County improperly construed applicable law; and (7) while the post-deprivation process afforded to plaintiff in review of SWO3 was not unconstitutional, issues of fact remain regarding whether the lack of pre-deprivation notice was unconstitutional. III. Grading and Erosion Control Permit Claims
Plaintiff's Second Claim for Relief seeks declaratory relief as to two conditions contained in the 1997 GEC permit issued to plaintiff. One challenged condition establishes a seasonal restriction for work performed on plaintiff's property. The other regulates dredged material deposits. Plaintiff's Third Claim for Relief seeks injunctive relief regarding these two restrictions. As noted above, I previously concluded in the April 14, 2000 Opinion on the motion for preliminary injunction, that plaintiff cannot maintain these claims because I either lacked jurisdiction to entertain them or they were untimely. Following that Opinion, I expected defendants to move for summary judgment against those claims; they have not.
For ease of reference, I will refer to the declaratory relief claims and the injunctive relief claims together as the "GEC claims."
Also as noted above, plaintiff realleged the GEC claims in the First Amended Complaint filed in May 2000. Each of the claims realleges paragraphs 1-20 of the First Amended Complaint which includes new allegations at paragraphs 8, 9, and 10. There, plaintiff contends that at the time the GEC permit was issued, the County exercised discretion rather than simply applying clear and objective standards, and did so without providing plaintiff with a hearing or an appeal. First Am. Comp. at ¶ 8. Plaintiff then alleges that after the GEC permit was issued, plaintiff and its representative complained about the conditions and inquired about an appeal or a hearing. Id. at ¶ 9.
Plaintiff alleges that County planners told plaintiff there was no appeal, but that the County would entertain requests for modifications of the conditions. Id. Plaintiff contends that over the next two to four months, plaintiff made numerous modification requests, but the County modified the GEC permit in only minor ways, ultimately unsatisfactory to plaintiff. Id. Plaintiff alleges that the County's actions were intentionally or recklessly misleading, designed to, or with the effect of, forestalling any attempt by plaintiff to appeal the GEC permit until after any appeal period under state laws had expired. Id. Plaintiff alleges that it relied on the erroneous and misleading statements by the County for at least four months by continuing to negotiate, rather than appeal, the illegal and unsatisfactory GEC permit conditions. Id.
Plaintiff then alleges that the County's actions constitute misleading or fraudulent concealment of the applicable appeal periods and statutes of limitations and the County should now be estopped from claiming either that plaintiff did not timely appeal the GEC permit conditions or that any challenges to the GEC permit conditions under section 1983 are untimely as outside the statute of limitations. Id. at ¶ 10. Additionally, plaintiff asserts that any statute of limitations under section 1983 was tolled for the period of the concealment and estoppel.
Having looked at these new allegations and having again examined the timeliness of the GEC claims, my original determination that I either lack jurisdiction to entertain them, or that they are untimely, remains. "[I]f a claim for declaratory relief could have been resolved through another form of action which has a specific limitations period, the specific period of time will govern." Levald. Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir. 1993) (internal quotation omitted). Thus, even though the attacks on the GEC permit are raised in the declaratory and injunctive relief claims, because other forms of action with specific time periods exist, the specific time periods govern.
As explained in the April 14, 2000 Opinion, these claims are either construed as direct attacks on the GEC permit conditions and are governed by the writ of review statute with its sixty-day timeline, or are construed as collateral attacks on the GEC permit under section 1983 and are governed by the two-year statute of limitations applicable to section 1983 claims.
For the reasons explained below in connection with plaintiff's section 1983 claim against Stop Work Order 1 (SWO1), I conclude that the "fraudulent concealment"/estoppel allegations are without merit and thus, even considering the additional allegations, my earlier conclusion regarding these claims was correct.
Nonetheless, I do not dismiss these claims at this time because of defendants' failure to move against them. Defendants suggested at oral argument that they did not move against them because of my determination in the April 14, 2000 Opinion. But, defendants should have realized that because that Opinion ruled only on plaintiff's motion for preliminary injunction, not on a motion by defendants, no order dismissing those claims accompanied that Opinion. I recognize that I may grant summary judgment sua sponte in some circumstances. See, e.g., O'Keefe v. Van Boening, 82 F.3d 322, 324 (9th Cir. 1996) ("Sua sponte entry of summary judgment is proper if there is no genuine dispute respecting a material fact essential to the proof of movant's case.") (internal quotation omitted). However, "a litigant must be given reasonable notice that the sufficiency of his or her claim will be in issue. . . . Reasonable notice implies adequate time to develop the facts on which the litigant will depend to oppose summary judgment." Id. (internal quotations omitted)
Plaintiff has not received notice that I am inclined to grant judgment against it on the GEC claims. This discussion is intended to provide such notice. Plaintiff may file any argument in opposition to the proposed sua sponte summary judgment within ten days of the date of this Opinion. Arguments previously made in writing by plaintiff may be made by incorporating them by reference, with citations to the record of this case. They should not be repeated in a new filing. Plaintiff is required to hand deliver or fax its argument to defendants. If defendants request leave to respond to plaintiff's argument, and if I grant the request, defendants may file a response to plaintiff's argument provided that previously presented arguments shall be incorporated by reference and new arguments only are presented in any new brief. Defendants' request to respond, if any, must be made to the Court within five days of receiving plaintiff's argument. If leave is granted, the response will be due no later than five days after leave is granted. If plaintiff files no further argument, summary judgment to defendants will be granted on these claims.
IV. Motion for Summary Judgment
A. Standards
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
"If the moving party meets its initial burden of showing "the absence of a material and triable issue of fact," "the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'" Intel Corp. v. Hartford Accident Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.
The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31.
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Id.; In re Agricultural Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics. Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).
B. Intentional Interference with Economic Relations
Plaintiff contends that defendants improperly interfered with plaintiff's contractual relationship with the State of Oregon's Division of State Lands (DSL) such that the DSL has refused to grant plaintiff a submerged and submersible land lease for additional, contiguous property beyond the property plaintiff currently leases from the DSL, thereby precluding plaintiff from expanding. To state a claim for tortious interference with a potential business relationship, plaintiff must show:
(1) the existence of a valid business relationship or expectancy, (2) intentional interference with that relationship, (3) by a third party, (4) accomplished through improper means or for an improper purpose, (5) a causal effect between the interference and damage to economic relations, and (6) damages.Kalgaard v. Lindo Mar Adventure Club. Ltd., 147 Or. App. 61, 66, 934 P.2d 637, 639 (1997)
For the purposes of this motion, defendants do not deny that plaintiff currently has a contractual or business relationship with the DSL or that the County could be considered a third party to that relationship for these purposes. Also, for the purposes of this motion, defendants are willing to concede interference with that relationship, and are willing to assume a causal effect between the alleged interference and the alleged damage to the relationship, as well as actual damages. Defendants argue, however, that plaintiff cannot produce evidence that the alleged interference was accomplished through improper means or for an improper purpose and thus, the claim must be dismissed as a matter of law.
[T]o be entitled to go to a jury, plaintiff must prove that defendant intentionally interfered with his business relationship but also that defendant had a duty of non-interference; i.e., that he interfered for an improper purpose rather than for a legitimate one, or that defendant used improper means which resulted in injury to plaintiff. Therefore, a case is made out which entitles plaintiff to go to a jury only when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself.Straube v. Larson, 287 Or. 357, 361, 600 P.2d 371, 374 (1979) (internal quotation omitted)
The propriety of the defendant's intent or motive is part of the plaintiff's case rather than an affirmative defense or privilege.Northwest Natural Gas Co. v. Chase Gardens. Inc., 328 Or. 487, 499, 982 P.2d 1117, 1124 (1999). "[I]f liability in tort is to be based on an actor's purpose, then the purpose must be to inflict injury on the plaintiff "as such. "` Id. (internal quotation omitted). And," [g]enerally, a defendant's subjective judgment as to its own business purposes will control." Id.
The evidence shows that defendants learned of plaintiff's request for a new submerged and submersible lease on or about April 24, 1998, when plaintiff requested that the County consent to a joint permit form from the DSL and the Army Corps of Engineers for a lease renewal and an additional area not contained in previous leases. As required by Oregon Administrative Rules, the permit form requires the local planning official to indicate whether the proposed project is in compliance with local planning ordinances. Defts' Exh. 111 at p. 16. Under the rule," [a]ll uses of state-owned submerged and submersible land shall conform to local (including local comprehensive land use planning and zoning ordinance requirements), state, or federal laws." Or. Admin. R. 141-082-0010(5).
Here, the County responded that plaintiff's compliance with local land use laws had not yet been determined. Defts' Exh. 111 at p. 16. Plaintiff resubmitted the application in late November or early December 1998 and the County responded:
No determination has been made regarding the status of this application. The County will require an entire package including Attachment A to the original lease prior to making a determination. Please notify the County of any changes to this application that may occur through processing the lease. Once we receive a completed permit with all attachments, the County will respond in a timely manner.
Defts' Exh. 114 at p. 3.
In May 1999, the County learned that the DSL was considering granting plaintiff a one-year temporary lease agreement for the additional submerged and submersible land. On May 13, 1999, the County, through Busse, requested that the DSL suspend any potential offer until plaintiff complied with County regulations. Defts' Exh. 112. At the time, SWO3 had just been issued demonstrating the County's belief that plaintiff was engaging in unpermitted work.
The next month, in June 1999, Busse wrote to the DSL again, informing it that giving plaintiff a one-year temporary lease would violate state regulations and subject the DSL to an enforcement action. Defts' Exh. 113. Plaintiffs' application to the DSL was apparently rejected. First Am. Compl. at ¶¶ 19, 20.
Based on this evidence, defendants argue that it is clear that they believed plaintiff was performing work outside of the scope of the GEC permit and thus, was not in compliance with local laws. Defendants contend that given their obligation to ensure that local land use and planning laws were being followed, and their obligation to inform the DSL of any violations of those laws, their conduct cannot, as a matter of law, be deemed improperly motivated.
Plaintiff argues that there is an issue of fact regarding defendants' motive. In her deposition, Busse stated that the reason the County so vigorously opposed the DSL granting a new lease to plaintiff was to provide "[i]ncentive for Fred's to come and correct the situation[.]" Busse Depo. at p. 135. Busse explained that she was "exercising the policy that I was directed to exercise when the board told me to make sure that there were no land use violations on any permits that get approved or reviewed by our office." Id. Plaintiff also notes that Busse could not think of another instance where the County had threatened suit against a state agency in a situation like this. Id. at pp. 135-39. Plaintiff argues that given the hostility between the County and plaintiff, there is at least a question of fact relating to the County's motive.
I do not view Busse's testimony as evidencing hostility between the County and plaintiff. But, even assuming that the relationship was hostile, I agree with defendants. Defendants' duty to report to the DSL that plaintiff was not in compliance with the County's land use and planning rules constitutes, as a matter of law, a privilege to "interfere" in the relationship between plaintiff and the DSL. Even assuming arguendo that defendants would like to see plaintiff out of business, that desire does not diminish defendants' duty to enforce their local planning laws if they believe they are being violated.
Plaintiff contends that defendants' privilege is limited to responding to questions on the joint permit application and that the privilege does not extend to letters written to the DSL asserting that the County would institute legal action against the DSL. I disagree. Obviously, the DSL was working with plaintiff to issue a temporary one-year lease. While the joint permit application expressly solicited the County's position regarding plaintiff's compliance with local ordinances, the temporary one-year license apparently carried no form or other format for allowing defendants to communicate the County's position. The administrative rule provides that "[a]ll uses" of state-owned submerged and submersible land must conform to local land use planning rules. Thus, defendants' duty to inform the DSL of local land use violations extends to temporary licenses. Accordingly, the privilege encompasses defendants' actions in writing letters in May and June of 1999 to the DSL to communicate its position that plaintiff was still in violation of local land use rules.
Plaintiff fails in its burden to create a material issue of fact on the improper motive element of this claim. I grant summary judgment to defendants on the intentional interference with economic relations claim.
C. Section 1983 Claims
1. SWO1
Defendants argue that any claims attacking SWO1 are untimely because SWO1 was issued on April 30, 1997, and this case was not filed until August 1999. Plaintiff argues that defendants concealed the availability of an appeal process for SWO1 and thus, the statute of limitations should be tolled during the period of the concealment. I agree with defendants.
Plaintiff argues that defendants' concealment tolls the statute of limitations for this claim. The relevant facts are identical to those asserted in plaintiff's concealment argument made in regard to the GEC claims. As previously indicated in the section on plaintiff's GEC claims, this discussion applies to both SWO1 and the GEC claims.
The statute of limitations for all section 1983 claims is the forum state's statute of limitations for personal injury torts, which in this case is two years. Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir. 1987); Plumeau v. School Dist. No. 40. County of Yamhill, 130 F.3d 432, 437 (9th Cir. 1997) (appropriate statute of limitations for section 1983 actions in Oregon is two years) (citing O.R.S. 12.110(1)). Additionally, state policies regarding tolling, reviving, and applying the relevant state statute of limitations apply to section 1983 claims.Board of Regents v. Tomanio, 446 U.S. 478, 483-85 (1980) (district court in section 1983 action applies forum state's rules of tolling); Johnson v. California, 207 F.3d 650, 653 (9th Cir. 2000) (when not inconsistent with federal law, federal court applies the law of the forum state regarding tolling in section 1983 action)
SWO1 was clearly issued more than two years before plaintiff filed this action.
Plaintiff argues that
representatives of Fred's Marina made repeated requests of the County about an appeal or a hearing with respect to the GEC and SWO #1. See Affidavit of Cherie Sprando, Affidavit of Jay McCaulley. The County responded by claiming no appeal rights existed. Id. Instead, the Defendants informed Fred's the way to handle the dispute was to apply for a GEC permit and use an "informal" process. Estrin admits all this. Estrin Deposition at 160, lines 2-12. The Code seemed to bear this out — granting no hearing or appeal from a stop work order, or from conditions in GEC permit. Fred's followed Defendant's [sic] advice, met with and sent numerous letters to the County, but after several months of negotiations, was no better off for trying to work with the County, and in fact by them [sic] both the Writ of Review and LUBA appeal possibilities had lapsed. Due to the concealment of the County regarding the availability of an appeals process Fred's was left unable to challenge SWO#1 or the GEC conditions.
Pltf's Memo. in Opp. to Defts' Mtn at pp. 12-13.
Plaintiff is to specifically identify the page or paragraph of the referenced affidavit in future submissions.
I have examined Sprando's affidavit, McCaulley's affidavit, and Estrin's deposition and find no evidence to support plaintiff's assertion of concealment. McCaulley states that he asked about appeal and hearing rights when SWO1 was issued, and when the GEC permit was issued, and was told there were none. McCaulley Affid. at ¶¶ 6, 9. Interpreting McCaulley's inquiries as questioning what appeal or hearing rights were provided within the County's processes, this was not inaccurate information because while County appeal rights for stop work orders are now found in MCC § 11.15.9052(D)(4), none existed at the time SWO1 was issued.
McCaulley states that he was told there were no appeal or hearing rights, "other than Ms. Estrin's letter which stated that if we had concerns we could discuss them with the County." Id. at ¶ 9. McCaulley's affidavit does not identify the letter he refers to and my examination of the exhibits attached to his affidavit reveal only one letter sent by Estrin to plaintiff. Pltf's Exh. 13. There, in a June 2, 1997 letter, Estrin acknowledges plaintiff's application for the GEC permit and makes no mention of working with the County to discuss concerns regarding SWO1. A May 23, 1997 letter from McCaulley to Estrin references a May 21, 1997 letter from Estrin to plaintiff, but no copy of that letter is attached to McCaulley's affidavit.
In his affidavit, McCaulley adopts as his own testimony a recitation of his proposed testimony by plaintiff's counsel during the preliminary injunction hearing. Id. at ¶ 1. There, plaintiff's counsel stated that McCaulley would testify that
at the time they got the GEC permit[, . . .] Fred's did not appeal because McCaulley was well aware that there was no appeal. He was well aware of that for two reasons.
One is the GEC permit didn't say anything about that. Whereas, the Willamette River Greenway had. And two, Ms. Muir told him there was no appeal; you're better off to work with us, Jay.
Exh. 1 to McCaulley Affid. at p. 2.
In Sprando's affidavit, the only reference to any appeal or hearing is in a recitation of what Sprando's testimony would be by plaintiff's counsel during oral argument on the motion for preliminary injunction. In her affidavit, Sprando adopts this testimony. Sprando Affid. at ¶ 1. The adopted testimony is:
She would have told you that she understood there was no appeal from the initial GEC permit; she understood that from Mr. McCaulley. She understood that because there's no language in the GEC permit telling her she could appeal.
Exh. 1 to Sprando Affid. at p. 15.
In her deposition, Estrin states that McCaulley asked her about an appeal of SWO1 and she told him about two avenues: (1) he could talk to her supervisor or, (2) plaintiff could choose not to comply with SWO1. Estrin Depo. at p. 160. Additionally, in her deposition, Muir states that at the time the GEC permit was issued, it was the Transportation and Land Use Planning Division's determination that no internal appeal procedure for GEC permits existed. Muir Depo. at pp. 56-58. She did not know if any other appeal procedure applied to GEC permits. Id. She did not recall whether any GEC permit applicant, after March of 1996 and into 1997, ever asked her whether they had a right to appeal conditions in a GEC permit.Id. at p. 58. If they had, she would have told them that there was no appeal procedure within the Land Use Planning Division. Id.
The evidence relied on by plaintiff shows that defendants provided accurate information regarding appeal and hearing processes within the County. At the time, there were no internal appeal procedures for a stop work order or a GEC permit. Thus, defendants' representations to that effect were entirely correct and did not conceal any avenues of relief. Additionally, given that there were no County appeal or hearing rights applicable to the GEC permit or SWO1, defendants accurately informed plaintiff that, within the County's ambit, the appropriate avenue of relief was to work informally with the County to address plaintiff's concerns.
Furthermore, construing McCaulley's inquiries as questions regarding non-County appeal and hearing processes, defendants were under no obligation to inform plaintiff of remedies outside of the County's procedures, including other statutory methods of challenging SWO1 or the GEC permit. Defendants are not attorneys and are not required to provide legal advice to their constituents. There is no evidence that defendants informed plaintiff that plaintiff could not file a petition for writ of review or a section 1983 claim challenging the GEC permit or SWO1. In fact, McCaulley's affidavit suggests that he was well aware of the writ of review, but chose not to avail himself of that option for tactical reasons. He states:
the County had recently moved the GEC ordinance from the Zoning Code to the Building Code, specifically for the purpose of destroying the right of a citizen to a hearing or an appeal. . . . The County thus had us in another Catch 22 — if we went directly to court on a writ of review, we risked delay, and alienating the County[.]
McCaulley Affid. at ¶ 9.
Even if there were active concealment, the alleged concealment was of a legal remedy, not the facts supporting the underlying claim. Plaintiff relies on a 1972 Oregon case in which the court held that
[c]oncealment of a cause of action from one in whom it resides by the one against whom it lies constitutes an implied exception to the statute of limitations, postponing the commencement of the running of the statute until discovery or reasonable opportunity of discovery of the fact by the owner of the cause of action.Chaney v. Fields Chevrolet Co., 264 Or. 21, 26-27, 503 P.2d 1239, 1241 (1972); See also Thayer v. Nydigger, No. 95-2004-AS, 1999 WL 372552, at *21 (D. Or. Apr. 15, 1999) (Judge Ashmanskas noting that in Oregon, a party who actively conceals a breach of contract will toll the statute of limitations until the injured party discovers or, with reasonable diligence, would have discovered the breach.) Chaney and Thayer address the concealment of facts supporting a cause of action, not the legal remedies for the claim. Here, plaintiff was well aware of SWO1 and the GEC permit at the time they were issued. None of the evidence relied on by plaintiff suggests that defendants concealed the facts regarding any cause of action. The cases do not assist plaintiff.
Finally, plaintiff argues that because it was negotiating the conditions in the GEC permit with defendants until October 2, 1997, the statute of limitations on its SWO1 and its GEC permit claims did not begin until then. As to the SWO1 claim, plaintiff's argument is clearly unavailing. Plaintiff's negotiations with the County concerned the conditions in the GEC permit, not SWO1. Plaintiff was injured by SWO1, if at all, beginning with its issuance in April 1997. Its alleged injury from SWO1 concluded on July 1, 1997, when SWO1 was lifted and the GEC permit became effective. Thus, there is no merit to plaintiff's theory that negotiations over the GEC permit conditions stalled the accrual of its cause of action as to SWO1.
As to the GEC permit challenges, I also reject plaintiff's argument. During oral argument, plaintiff conceded that it was injured by the GEC permit conditions on July 1, 1997, more than two years before the filing of this action. Plaintiff argued, however, that the negotiations with the County during the next three months resulted in an additional injury on October 2, 1997, when the negotiations concluded and it became clear that the GEC permit was final. Thus, plaintiff contends that the action is timely, based on the October 2, 1997 date. If the negotiations had resulted in additional conditions being imposed on plaintiff, plaintiff's argument might be viable, at least as to those additional conditions. Given that the negotiations resulted in the lifting of one or more conditions, or revising them to plaintiff's benefit, I fail to see how plaintiff was "reinjured" at the conclusion of the negotiations in October 1997. While plaintiff did not achieve the results it hoped for, the injuries to which plaintiff now objects were inflicted on July 1, 1997.
Plaintiff's concealment theory in support of its tolling argument as to SWO1 is unpersuasive. Additionally, I reject plaintiff's theory that ongoing informal negotiations with the County tolled the limitations period until October 2, 1997, or inflicted a new injury on that date. I grant summary judgment to defendants on plaintiff's SWO1 claim.
2. SWO2
SW02 was issued on or about March 12, 1998. Plaintiff did not bring a claim with respect to SWO2 in its original August 12, 1999 Complaint. Plaintiff added a claim against SWO2 in its First Amended Complaint filed on May 23, 2000. Because the claim against SWO2 was filed more than two years after the issuance of SWO2, the claim must relate back to the original complaint for it to be timely. Defendants argue that it does not; plaintiff argues that it does.
Both parties mistakenly cite to federal relation-back principles in support of their arguments. Because state relation-back rules, not Federal Rule of Civil Procedure 15(c), govern section 1983 claims, see Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989), Oregon Rule of Civil Procedure 23C, and cases interpreting it, provide the proper analysis.
Under the rule, "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." Or. R. Civ. P. 23C. As recently explained by the Oregon Court of Appeals:
The rule's concern is one of notice. A newly alleged cause of action may relate back to the filing of the original complaint if the defendant would have been able to discern from the earlier pleading a potential for the additional basis of liability. Thus, the new claim must arise out of or directly involve the occurrence that was originally alleged.Jeffries v. Mills, 165 Or. App. 103, 119, 995 P.2d 1180, 1190-91 (2000)
In Mills, a legal malpractice action, the defendant had represented plaintiff in a bankruptcy proceeding. The plaintiff's judgment creditors offered to purchase some of the stock she held, from the bankruptcy trustee. The judgment creditors presented the proposal to the bankruptcy court for approval. The defendant did not attend the hearing on the proposed sale or file objections on the plaintiff's behalf and the bankruptcy court ordered the sale. In the legal malpractice action, these events formed the basis of a negligence claim. Later, the plaintiff sought to add a new claim of negligence based on assertions that following the sale, the defendant failed to file a motion for reconsideration, to appeal, and to advise the plaintiff to seek other counsel.
The Court of Appeals affirmed the trial court ruling that the new count of negligence did not relate back to the filing of the original complaint because it involved discrete and new particulars of negligence. Id. The court explained that the second count of negligence did not bear a sufficient relationship to the first because the defendant's "representation of [the plaintiff] in the initial bankruptcy hearing involved judgments and professional choices that were distinct and independent, both in substance and time, from those involved in her attempt to determine how to respond legally to the bankruptcy court's unfavorable order." Id. at 120, 995 P.2d at 1191. Because the first count put the defendant on notice that he was being sued for negligence based on his allegedly inadequate representation in connection with his efforts to prevent the bankruptcy court from ordering the sale of the stock, that claim "did not give [the defendant] any inherent notice of or reason to assume that later acts or omissions concerning appeal and reconsideration would likewise be charged as negligent." Id. Thus, the second count of negligence did not relate back. Id.
Mills teaches that even when the newly added claim is between the same parties and concerns the same relationship, it does not relate back if it challenges an act separate in time and substance from the acts forming the basis of the original claims. This principle is also seen in a 1993 Oregon Supreme Court case which ruled on whether several newly added tort claims "related back" under Rule 23C. Caplener v. United States Nat'l Bank of Or., 317 Or. 506, 857 P.2d 830 (1993).
Caplener was an action by a partnership, two of the three individual partners, and the trustee of the bankruptcy estate of another partner, against a bank for damages allegedly caused by the bank's breach of an oral agreement to lend money to the partnership. The plaintiffs originally alleged that in December 1984, the bank agreed to lend the partnership $1.5 million for a lumber purchase and that, after the bank made an initial payment of a portion of that amount, the bank breached the agreement in March 1985 by failing to advance the remaining funds. In a Third Amended Complaint, the plaintiffs added several new claims.
In the first, the plaintiffs sought to add a breach of the duty of good faith and fair dealing claim because the bank required the plaintiffs' customers to provide additional security, seized funds from the plaintiffs' accounts, refused to give the plaintiffs the chance to obtain alternative financing, prevented the plaintiffs from selling their trucking division, and forced the plaintiffs to liquidate assets. The court held that the claim did not relate back because it challenged dealings between the parties after the loan was denied and arose out of the bank's efforts to secure the debt that the plaintiffs admittedly owed to the bank. Id. at 522, 857 P.2d at 841.
The plaintiffs next asserted an intentional interference with contract claim alleging that the bank interfered with a contract for the sale of lumber by requiring the customer to provide additional security. The court held that this claim did not relate back because the allegations did not refer to the underlying transaction for which the loan at issue in the original complaint was to be made. Id. at 523, 857 P.2d at 841.
The next claim was an intentional interference with business relations claim, based on events beginning in March 1985 and continuing until the plaintiffs' assets were liquidated. The allegations involved dealings after the denial of the original loan and thus, did not relate back. Id.
The next claim was for intentional infliction of emotional distress. To the extent the claim was based on events occurring after the original denial of the loan, the claim did not relate back. Id.
The next claim asserted that the bank was negligent in allowing its agent to make the oral commitment to the plaintiffs without review by higher management, in allowing the agent to advance the initial portion of the loan, and in allowing its agents to over-promote the bank's willingness to make the loan. Because the allegations involved essentially the same conduct as alleged for the "promise" and "breach" elements of the original contract claim, the court held that the negligence claim related back to the original complaint. Id. at 524, 857 P.2d at 841.
Finally, the last new claim was a breach of fiduciary duty claim based on conduct before the events challenged in the original complaint. The plaintiffs alleged that in 1983, the bank began discouraging them from banking with other institutions and encouraged them in various ways to expand their business. The court concluded that although the alleged events occurred before the events involved in the original pleading, the claim related back because the facts pertained to the allegation in the original complaint that a fiduciary relationship and duty existed and the allegations related to the ultimate contention that the bank breached its fiduciary duty by denying a promised loan. Id. Under Mills and Caplener, ever when newly asserted claims arise out of a continuing relationship and even when they relate to the same events, they do not relate back if they concern discrete events, events or transactions not challenged in the original action, or do not concern actions which occurred at the same time as those challenged in the original complaint. In Mills, even though the newly asserted claim was based on the same relationship as the original claim (attorney-client) and concerned the same subject (the same bankruptcy proceeding), the court concluded that the new negligence claim did not relate back primarily because it concerned events occurring later in time than those challenged in the original complaint.
In Caplener, even though the newly asserted claims were based on the same relationship and transaction (the loan agreement and the bank's alleged failure to keep its promise), the court concluded that most of the new claims did not relate back because the events were not part of the original loan. Thus, here, the fact that the newly asserted claim is between the same parties and addresses one of three stop work orders issued because of alleged violations of the same GEC permit, is not enough to show that the SWO2 claim relates back to the original complaint. SWO1, SWO2, and SWO3 were issued at separate times and for different reasons: SWO1 in 1997 for working without a permit; SWO2 in 1998 for violating the seasonal restriction; and SWO3 in 1999 for performing work outside of the permitted work.
Plaintiff argues that the alleged hostility by Estrin toward plaintiff provides a common theme for challenging the issuance of all three stop work orders. Plaintiff cites the affidavit of former counsel Dan Chandler in support of its argument that it learned of Estrin's hostility after discovery and that the actions of defendants with respect to SWO2 were similar to those surrounding SWO1 and SWO3.
In his affidavit, Chandler makes no mention of SWO1. Additionally, Chandler's affidavit, read in conjunction with Estrin's affidavit which Chandler cites, suggests that Estrin's alleged hostility toward plaintiff arose after SWO2 was issued when the parties were attempting to negotiate a resolution to SWO2, and did not exist before 5W02's issuance. Finally, even if the cited affidavits supported a common theory or pattern of hostility, which they do not, that is not enough to sustain a relation-back argument under Mills or Caplener. For example, in Mills, the plaintiff's newly added claim indicated a common theory or pattern of negligent conduct by the defendant. Still, because the acts occurred after the sale of stock by the bankruptcy court, the new claim did not relate back.
Because SWO2, a discrete action by defendants, was issued at a different time and for different reasons than SWO1 or SWO3, defendants would not have been able to discern from the original complaint the potential for adding a claim against SWO2. The claim does not relate back. I grant summary judgment to defendants on the SWO2 claim.
3. SWO3
In Count Three of plaintiff's Fifth Claim for Relief, plaintiff alleges that defendants violated plaintiff's constitutional rights by (1) issuing and upholding SWO3 when it was not authorized by law; (2) issuing SWO3 with no findings or rationale, no hearing, no opportunity to present evidence, no opportunity to confront or cross examine evidence against plaintiff; and (3) issuing SWO3 when defendants were unconstitutionally biased against plaintiff or in a manner different from the imposition of stop work orders on other similarly situated citizens. First Am. Compl. at ¶ 49.
Although plaintiff fails to designate which specific constitutional right or rights it believes were violated by these alleged acts, plaintiff's briefing suggests that it believes that the first two allegations support a procedural due process claim. I agree with plaintiff that the second allegation supports a procedural due process claim. As to the first, however, an allegation that SWO3 was issued when it was not authorized by law is most readily understood as an allegation that SWO3 was not authorized by the County Code because of the lack of findings under MCC § § 11.15.9052(E). But, a violation of state or local law does not amount to a section 1983 claim. See Franklin v. Terr, 201 F.3d 1098, 1100 (9th Cir. 2000) (to state a section 1983 claim, plaintiff must allege that he was deprived of a right secured by federal constitution or federal law)
Both parties address the third allegation as part of the separately pleaded equal protection claim. As I read the third allegation in support of Count Three, I understand plaintiff to be alleging that defendants' alleged bias against plaintiff propelled the issuance of SWO3 and thus, it was an arbitrary governmental action. While allegations such as this can support a substantive due process claim, see Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (stating that substantive due process protects individuals from governmental actions which are "clearly arbitrary and unreasonable"), they are also seen in equal protection claims. See Armendariz v. Penman, 75 F.3d 1311, 1327 (9th Cir. 1996) ("[a] [County] may not enforce its zoning and land use regulations arbitrarily."); Lockary v. Kayfetz, 917 F.2d 1150, 1155 (9th Cir. 1990) ("the rational relation test [under the Equal Protection Clause,] will not sustain conduct by state officials that is malicious, irrational or plainly arbitrary.").
Because there is an equal protection claim asserted here, it makes more sense to address the third allegation in support of Count Three, with the separate equal protection claim below. See Buckles v. King County, 191 F.3d 1127, 1137 (9th Cir. 1999) ("when an explicit textual provision of the Constitution protects against the challenged government action, the claim must be analyzed under that specific provision alone and not under the more general guarantee of substantive due process."). That leaves only the procedural due process claim against SWO3. That claim, however, is the same due process claim asserted in support of the petition for writ of review. The analysis and the conclusion provided there, are the same here as they were in regard to that claim. Procedurally, however, because this is now summary judgment, I deny defendants' motion for summary judgment on the due process claim. If the evidence at trial sustains defendants' assertion that excessive erosion existed at plaintiff's property, defendants will prevail on the due process claim.
Because of my conclusions regarding the writ of review claim, I reject defendants' argument that the section 1983 procedural due process claim must be rejected as unripe. The writ of review claim concluded on May 11, 2000, when SWO3 was annulled. I have construed the County's motion to dismiss the writ of review as a motion for reconsideration of the May 11, 2000 Order annulling SWO3. As indicated, because that motion is denied, the writ of review process remains complete as of May 11, 2000, or at the latest, as of the issuance of this Opinion with the denial of the motion for reconsideration.
4. Takings Claim
Although plaintiff bases its Fifth Amendment takings claim on all of defendants' actions, given my previous rulings on the GEC claims, SWO1, and SWO2, the only remaining basis for the claim is the issuance of SWO3. Additionally, inasmuch as I already annulled SWO3 on May 11, 2000, the takings claim is limited in time — SWO3 was issued on May 7, 1999, and annulled on May 11, 2000. Any taking that may have occurred because of SWO3 is confined to that time period.
When a government regulation compels a property owner to suffer a permanent physical invasion or occupation of his property, or where regulation denies the property owner all economically beneficial or productive use of the land, a "categorical taking" has occurred and no further analysis is required. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 216 F.3d 764, 772-73 (9th Cir. 2000). Here, plaintiff does not assert that defendants have physically invaded or occupied the property. Plaintiff also does not assert that SWO3 has denied plaintiff all economically beneficial or productive use of the property. There is no categorical taking.
Without a categorical taking, the question of "whether a particular restriction [amounts to a taking] depends largely upon the particular circumstances of each case — that is, on essentially ad hoc, factual inquiries." Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). In such cases, the Ninth Circuit notes that the Supreme Court has indicated that most regulatory takings questions
should be resolved by balancing the public and private interests at stake, with three primary factors weighing in the balance: (1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action.Tahoe-Sierra Pres. Council, 216 F.3d at 772.
In Buckles, the Ninth Circuit noted that although the Supreme Court had not precisely delineated the elements of a regulatory takings claim, the contours of such a claim had been established. Buckles, 191 F.3d at 1140. There is no categorical regulatory taking if the regulation does not deny a landowner all economically viable use of its land. Id. And, there is no other regulatory taking when the regulation denies the landowner only some economically viable use of its land "if the regulation substantially advances a legitimate government interest." Id.
Here, there is an issue of fact as to whether there has been any adverse economic impact to plaintiff by virtue of SWO3 and the limited time it was effective. Plaintiff's economic impact evidence does not segregate the effects of defendants' acts. Construing the evidence in plaintiff's favor, I conclude that there is a question of fact as to whether, and to what extent, plaintiff has been economically harmed by SWO3.
Even if plaintiff has been harmed, however, there is no taking if the government's regulation substantially advances a legitimate government interest. In a recent Ninth Circuit case, the court affirmed that the "substantially advances legitimate government interest" test is the appropriate test in a regulatory takings case. Chevron USA. Inc. v. Cayetano, 224 F.3d 1030, 1037 (9th Cir. 2000). The court also made clear that summary judgment was inappropriate when there were issues of fact as to whether the state's asserted interest was legitimate. Id. at 1042.
Defendants argue that they have legitimate governmental interests in controlling erosion and harmful runoff, and that these interests support the GEC permit and SWO3. I agree with defendants as to the GEC permit, which in any event is not at issue here. I also note that plaintiff does not challenge the underlying regulatory scheme providing jurisdiction to the County to issue stop work orders. Thus, to the extent defendants' argument is that regulations allowing stop work orders substantially advance a legitimate government interest, I agree with defendants.
However, under the facts of this case, I have already determined that SWO3 is defective in more than one respect: it was issued in contravention of the applicable procedure, it was not based on substantial evidence of emergency conditions, it was based on an erroneous construction of applicable law, and it may have violated plaintiff's rights to due process. I conclude, as a matter of law, that while the underlying regulatory scheme advances a legitimate government interest, SWO3, the specific governmental action challenged in this case, cannot. Given the defects noted above, SWO3 cannot, as a matter of law, further a legitimate governmental interest. Therefore, I deny summary judgment to defendants on the takings claim and note that the issue remaining for the jury is one of damages: whether plaintiff has suffered any economic harm as a result of SWO3, and if so, how much.
5. Equal Protection
In this claim, plaintiff makes two distinct equal protection allegations: 1) that it received unequal treatment — SWO3 was issued in a manner different from the imposition of stop work orders on other similarly situated citizens; and 2) SWO3 was issued because of unconstitutional personal or political biases against plaintiff. I separately address these allegations.
a. Unequal Treatment
"When a government's action does not involve a suspect classification or implicate a fundamental right, it will survive constitutional scrutiny for an equal protection violation as long as it bears a rational relation to a legitimate state interest." Patel, 103 F.3d at 875. Here, there is no assertion that plaintiff is a member of a suspect class and no assertion that plaintiff's interest in running its business or working on its property is a fundamental right as such is understood in equal protection analysis. Thus, the rational relationship test is appropriate here.
Although defendants did not raise the issue, there is now no question that plaintiff can be a "class of one." Village of Willowbrook v. Olech, 528 U.S. 1073, 120 S.Ct. 1073, 1074-75 (2000). That, however, does not change the fact that while plaintiff is a "class," plaintiff is not a "suspect" class.
To comply with equal protection principles, the government must have a rational basis for treating similarly situated persons differently. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (equal protection of the laws is "essentially a direction that all persons similarly situated should be treated alike."); Shaar v. INS, 141 F.3d 953, 961-62 (9th Cir. 1998) (government must demonstrate rational basis for disparate treatment of similarly situated persons) (Browning, J., dissenting); McQueary v. Blodgett, 924 F.2d 829, 85 (9th Cir. 1990) (under rational basis test, plaintiff must prove that others similarly situated were systematically treated better than he)
In its initial submissions on this claim, plaintiff suggests that the unequal treatment complained of is Estrin's decision to lift SWO2 even though she believed plaintiff was not in compliance with the GEC permit. This allegation is insufficient to overcome defendants' motion because first, the equal protection claim is limited to SWO3, and second, there is no appearance of any harm caused by lifting SWO2. Additionally, the evidence shows that Estrin believed further enforcement of SWO2 was futile and does not admit that she treated plaintiff any differently than similarly situated entities.
At oral argument, however, I allowed plaintiff to supplement the record with additional evidence of alleged unequal treatment. The new evidence relates to a County construction project on Sauvie Island. The County worked with TriMet and Metro to fill and pave part of the parking lot at the east end of the Sauvie Island bridge. The evidence shows that the County issued a press release on June 23, 2000, announcing the project. Pltf's Supp'l Exh. 1. It is unclear from the record exactly when construction was completed, but it clearly finished before July 20, 2000, when the County transportation division's Chuck Henley issued an office memorandum to Muir in which he stated that the County and TriMet recently constructed a paved bus turnaround. Pltf's Supp'l Exh. 4. Sometime in early August 2000, the County realized that because more than fifty cubic yards of fill was used in the project, a GEC permit was required. The County applied for a GEC permit, after the fact, on August 8, 2000. It was approved on September 8, 2000.
Plaintiff argues that this evidence shows that the treatment the County received as the landowner of the turnaround property, was dissimilar from the treatment endured by plaintiff, and thus, there is evidence of "unequal treatment" in support of plaintiff's equal protection claim. I disagree with plaintiff.
As explained above, the proper question is whether there is dissimilar treatment in issuing stop work orders to entities in violation of a grading and erosion control permit. The facts of the bus turnaround situation are not similar because there, by the time the County planning department learned about the project and learned that a GEC permit was needed, the project was complete. No stop work order could issue because there was no work to stop. This is not a situation where there was ongoing work as seen with plaintiff.
Because plaintiff cannot challenge its GEC permit, it cannot argue that the County treated it differently by making plaintiff get a GEC permit while originally not requiring the County to get one. With the focus restricted to the issuance of SWO3, the proper comparator is the County's issuance of stop work orders. With the Sauvie Island project, there was no basis for issuing one. Thus, the evidence does not create an issue of fact as to whether plaintiff was treated differently from a similarly situated entity. I grant summary judgment to defendants on plaintiff's "unequal treatment" equal protection argument.
b. Unconstitutional Bias
As noted earlier in connection with Count Three of the Fifth Claim for Relief challenging SWO3, this claim is properly interpreted as alleging arbitrary governmental action in violation of the equal protection clause. As noted there, "the rational relation test will not sustain conduct by state officials that is malicious, irrational or plainly arbitrary." Lockary, 917 F.2d at 1150. "A [County] may not enforce its zoning and land use regulations arbitrarily." Armendariz, 75 F.3d at 1327.
To the extent plaintiff's argument relies on Estrin's act of lifting SWO2, it cannot be sustained for the reasons indicated above in the previous section on unequal treatment. Plaintiff also argues that Estrin's personal animosity toward plaintiff's agent McCaulley, was the motivation for issuing SWO3. As such, plaintiff argues, SWO3 was an arbitrary act with no rational relation to a legitimate governmental interest.
Estrin does not deny having a difficult relationship with McCaulley. In regard to the issuance of SWO3, she states that after she discontinued enforcement of SWO2, she continued to monitor plaintiff's property and observed piles of fill placed along Marina Way decreasing and increasing over a period of months. Estrin Affid. at ¶ 13. She then states that
[w]ith the change in the piles and the increase of fill on Ramp #3, I determined in 1999 that grading and filling work had occurred in the area along Marina Way and along Ramp #3 from the Main Parking Lot along the `Lagoon.' I also determined that neither activity was authorized in the GEC 20-97 permit.Id. at ¶ 14.
The evidence in the record supports either of two inferences: (1) based on Estrin's testimony regarding what she observed on the property, SWO3 was issued because of permit violations; and (2) based on the acknowledged difficulties between Estrin and plaintiff's agent, SWO3 was issued out of a personal bias and thus, arbitrarily and without a rational relationship to the County's legitimate interest. Because I must construe all inferences in plaintiff's favor, I deny defendants' motion on the "arbitrary" prong of plaintiff's equal protection claim.
6. First Amendment Retaliation
Plaintiff does not independently assert a First Amendment claim, but instead brings it with the equal protection claim. Because the analyses are different, I address the claim separately.
To demonstrate a First Amendment violation, "a plaintiff must provide evidence showing that by his actions the defendant deterred or chilled the plaintiff's political speech and such deterrence was a substantial or motivating factor in the defendant's conduct." Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999) (internal quotation omitted). To show that the defendant deterred or chilled the plaintiff's speech, a plaintiff need only show that defendants intended to interfere with the plaintiff's First Amendment rights. Id.
The "proper inquiry asks `whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities.'" Id. (quoting Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996), vacated on other grounds, 520 U.S. 1273 (1997)) (internal quotation marks and citation omitted). Intent to inhibit speech can be demonstrated either through direct or circumstantial evidence.Id. at 1300-01.
Cherie Sprando, one of plaintiff's owners and its Chief Operating Officer, states that for the past ten years, she has exercised her First Amendment rights by taking part in business and trade associations for marina waterfront users. Sprando Affid. at ¶ 5. She was president of the Waterfront Owners and Operators of Oregon during the mid-1990s and took an active role in challenging the planned rezoning of the seven marinas along the Multnomah Channel area in 1995. Id.
Sprando indicates that she was an active participant in the creation of the Sauvie Island Master Plan. Id. She states that in all of these matters, either on her own behalf or on behalf of waterfront owners and operators, she challenged the policy positions being taken by the County and, to a lessor extent, the DSL. Id. She states that in fact, "as a result of my leading vigorous opposition to the arbitrary rezoning of the 7 marinas along Multnomah Channel, a Senior Planner at Multnomah County was removed and the current Planner, Kathy Busse, took his place." Id.
Sprando further states that since these events, she has noticed a "significant cooling of my relations with staff at Multnomah County, which eventfully [sic] turned into outright hostility." Id. at ¶ 6. She believes the County's action in issuing SWO3 was an effect of this hostility. Id.
Subsumed within the question of whether defendants intended to interfere with plaintiff's First Amendment activities is the issue of whether defendants were aware of the First Amendment activities in the first place. To intend to chill or suppress such activities presumes knowledge of them by defendants.
While there is no express statement by either party that the individual defendants or the County were aware of Sprando's activities, Sprando's allegation that activities resulted in the removal by the County of its previous planner suggests some knowledge on the County's, and possibly its agents', part. With no affirmative denial of such knowledge from the individual defendants in the record, there is an issue of fact as to whether defendants knew of Sprando's activities. Assuming they knew of her protected First Amendment conduct, an inference is created that defendants issued SWO3 as retaliation for that activity and as a means of intentionally interfering with her First Amendment rights. Thus, I deny summary judgment to defendants on the First Amendment claim, v. Motion to Amend
Plaintiff moves to amend its currently operative First Amended Complaint to add a third count to its second and third claims for relief, or the declaratory and injunctive relief claims, or as I've previously called them, the "GEC claims." Plaintiff's amendments appear to start with new paragraph 20 which alleges that
Since the issuance of Stop Work Order #1, the County has continually refused to process any permits for Fred's Marina including building and electrical permits for routine maintenance, repair and remodeling citing its policy of not processing permits if it deems the citizen to have an outstanding violation, regardless of whether the applied for permit is in any way connected to the alleged violation, and regardless of whether the citizen has contested or appealed the claim of violation.
Proposed Second Am. Compl. at ¶ 20.
In newly added paragraphs 31 and 32, plaintiff realleges paragraphs 1-21 and then adds that "Fred's seeks a declaration under ORS Ch. 28 that the County's refusal to process Fred's permit applications is unconstitutional in violation of Fred's rights to substantive due process of the law." Id. at ¶ 32. In newly added paragraphs 39-41, plaintiff realleges paragraphs 1-21, then adds that "[w]ithout restraint and injunctive relief, the County will continue to prohibit Fred's Marina from the use of its property by repeatedly denying Fred's permit applications for reasons wholly unrelated to the merits of the permit applications themselves." Id. at ¶ 40.
A. Standards
Federal Rule of Civil Procedure 15(a) provides that leave to amend a complaint "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The court should apply the rule's policy of favoring amendments "with extreme liberality." DCD Programs. Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (internal quotation omitted). In determining whether to grant a motion to amend, the court should consider bad faith, undue delay, prejudice to the opposing party, futility of amendment, and prior amendments to the complaint. Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355-56 (9th Cir. 1996). Delay, by itself, will not justify denying leave to amend. DCD Programs, 833 F.2d at 186.
The timing of the motion to amend following discovery and with a pending summary judgment motion, weighs heavily against allowing leave.Schlacter-Jones v. General Tel. of Cal., 936 F.2d 435, 443 (9th Cir. 1991). Additionally," [t]he district court's discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint." Ascon Properties. Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir. 1989)
B. Discussion
Plaintiff asserts that the County was previously aware of the newly asserted facts and thus, it cannot demonstrate that it will suffer prejudice sufficient to defeat plaintiff's motion. Defendants oppose the motion, arguing futility, delay, and prejudice.
1. Delay
Defendants state that several months ago, counsel for plaintiff discussed with counsel for defendants that plaintiff might wish to amend its complaint to include the new allegations. Duffy Affid. in Support of Resp. to Mtn. to Amend at ¶ 2. Defendants represent that if the amendments had been filed before the close of discovery on July 11, 2000, counsel for defendants would not have objected to the amendments on the grounds of delay or prejudice. Id. Defendants note that it is now months later, non-expert discovery has closed, summary judgment is pending, and a February trial is scheduled. Defendants argue that because plaintiff could have filed its proposed second amended complaint with these new claims months ago, leave to amend should not be granted.
plaintiff replies that contrary to defense counsel's representations, defendants' actions triggering the amendment occurred in the summer of 2000 and plaintiff's counsel began discussing them with defendants' counsel in September 2000, not several months ago as claimed by defendants. Clark Affid. at ¶ 3. Plaintiff states that at that time, plaintiff's counsel conferred with defendants' counsel regarding the possibility of amending the complaint. Id. plaintiff states that plaintiff's counsel offered to amend the complaint or file a separate lawsuit. Id. According to plaintiff, defense counsel did not want a separate lawsuit and preferred that all the matters be resolved in one lawsuit. Id.
The new allegations in the proposed second amended complaint contend that the County has refused to process any permits for plaintiff since the issuance of SWO1. SWO1 was issued on April 30, 1997. The allegation that permit denials have been occurring since April 30, 1997 cannot be reconciled with the representation that the actions triggering the amendment occurred in the summer 2000.
Clearly, there is a factual dispute over when the basis for the new allegations became known. Because I have not taken testimony on the issue, I cannot resolve the factual dispute at this time. Therefore, for purposes of this motion, I will assume the validity of plaintiff's representations and thus conclude that there has been no undue delay.
2. Prejudice
Defendants argue that if plaintiff's motion to amend is granted, they will suffer unfair prejudice. Defendants state that plaintiff's new allegations, in paragraph 20 quoted above, surround a number of unspecified permit "denials" including building permits, electrical permits, and possibly land use permits for expansion of the marina. Although plaintiff states in its motion that the new allegations affect only its second and third claims for relief, defendants are concerned that the additional allegations may implicate other claims as well, particularly the intentional interference with contract or prospective economic advantage claim and the section 1983 claims.
After reviewing the proposed amended complaint, I join in defendants' concern, at least as to the section 1983 claims. See Pltf's Proposed Second Am. Compl. at ¶¶ 69-71 (adding a new count to the section 1983 claim alleging that the County's actions "in refusing to process routine permits for reasons unrelated to the merits of the permits" violate plaintiff's procedural and substantive due process rights)
Based on the new allegations, defendants anticipate they will first file a motion for plaintiff to make its allegations more definite and certain. Then, they will likely file a motion to strike or dismiss due to failure to state a claim. Defendants will want discovery reopened and will want to designate an additional expert. They will likely file a summary judgment motion on the new allegations. Defendants anticipate that the amendments will delay trial for perhaps another year. While I doubt amendment would add that much time, it will certainly delay resolution significantly. Defendants argue that they will be severely prejudiced by the delay in trial because plaintiff alleges that its damages accrue daily. Thus, in the event plaintiff prevails on even part of its claims, every day the trial is delayed prejudices defendants.
Plaintiff states its proposed amendments add due process claims substantially related to the due process claims already at issue in the case. While there are procedural due process claims presently in the case, the substantive due process claim has been analyzed under the equal protection clause's prohibition on arbitrary government action. Although plaintiff contends in paragraph 70 of the proposed complaint that the alleged permit denials violate plaintiff's procedural due process rights, the basis for such a claim is unclear from the allegations. Additionally, the current claims address the issuance of SWO3 and the alleged interference by the County with plaintiff's relationship with the DSL. None of the allegations touch upon the County's failure to issue new permits.
Plaintiff also contends that the amount of additional discovery would be minimal because the new claim is based in large part on evidence contained in the record. Plaintiff fails to indicate what portion of the record contains the relevant evidence. I am unaware of evidence in the record which pertains to the new allegations other than an allegation in Sprando's affidavit that
County staff urged the Multnomah County Board of Commissioners to recommend to the Oregon Liquor Control Commission that plaintiff's liquor license not be renewed. Although this is not the County itself refusing to issue a permit, it is a related allegation. Similarly, the evidence regarding the intentional interference claim, while not directly concerning the County's refusal to issue a permit, is somewhat related. Other than that evidence, however, I find no evidence in the record directly supporting the newly asserted allegations regarding the County denying permits.
Plaintiff additionally notes that expert discovery is still open for another month so the County's need for an additional expert cannot be part of a prejudice analysis. Expert discovery closed on December 15, 2000, but even if the deadline were extended, the prejudice occurs not only because of the time constraints created by court deadlines, but because of the additional expense and effort involved in hiring an additional expert, keeping defendants from focusing on the current issues.
I conclude that allowing amendment would be prejudicial to defendants. First, it is important to note that this case was filed fourteen months ago, there has already been extensive briefing of legal issues, there has been one prior amendment of the complaint, summary judgment motions have been pending since July 31, 2000, and with this opinion have now been concluded, non-expert discovery is closed, expert discovery closed December 15, 2000, and a February 2001 trial is scheduled.
Second, I do not agree with plaintiff's argument that the newly asserted claims are similar to the present claims. Third, I do not know, but I doubt that plaintiff is correct that minimal discovery will be needed because the basis for the newly asserted claims is already in the record. Thus, I agree with defendants' assessment that discovery would need to be reopened and that two, or possibly three, motions would be directed at the new claims. The trial would have to be reset at least six months and probably longer. Given the age of the case, the fact that previous amendments have been allowed and that we are less than two months from trial with summary judgment now complete, allowing plaintiff to amend at this stage would be prejudicial to defendants.
3. Futility
A motion to amend is properly denied when an amendment would be futile. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) Futility alone can justify a court's refusal to grant leave to amend. See Id. Futility is found when the proposed amendment fails to state a claim for which relief may be granted. See, e.g., Partington v. Bugliosi, 56 F.3d 1147, 1162 (9th Cir. 1995). Under the failure to state a claim standard, an amendment is viewed as futile "if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Miller v. Rykoff-Sexton Inc., 845 F.2d 209, 214 (9th Cir. 1988).
Defendants argue that plaintiff's proposed amendments are futile because they fail to state a claim for which relief may be granted. In the motion to amend, plaintiff states that the legal support for its newly asserted allegations is found in Woodwind Estates. LTD v. Gretkowski, 205 F.3d 118 (3rd Cir. 2000).
There, a developer of a low income housing project brought a section 1983 substantive due process claim against the township and the township's individual officers over the defendants' failure to approve development plans for certain property. Id. at 120. Under the pertinent land development ordinance, plaintiff first had to submit a preliminary development plan, which it did. The township's planning commission rejected the proposed plan. It was clear that the planning commission had been greatly influenced by a group of private citizens, represented by private counsel, opposed to the project because of the socioeconomic status of the prospective tenants. Id. at 121-22.
The district court granted summary judgment to the defendants. On appeal, the Third Circuit reversed. First, the court said, to sustain a substantive due process claim, the plaintiff had to show that it had a protected property right in the approval of its development plans. The court explained that
the holder of a land use permit has a property interest if a state law or regulation limits the issuing authority's discretion to restrict or revoke the permit by requiring that the permit issue as a matter of right upon compliance with terms and conditions prescribed by the statute or ordinance.Id. at 123. The court concluded that the plan submitted by the plaintiff "indisputably satisfied all of the requirements for approval" under the governing ordinance and that the "ordinance substantially limits the Township's discretion regarding approval" Id. Thus, the court concluded that the plaintiff had a protected property interest under the Fourteenth Amendment. Id.
Defendants argue that plaintiff cannot make the same showing here because in contrast to the ordinance in Woodwind, there is no similar language in the Multnomah County Code restricting the County's discretion. The County's zoning code allows for appropriate conditions and restrictions to be placed on permits.
Although there appear to be no Ninth Circuit cases exactly likeWoodwind Estates, Ninth Circuit law is consistent. Generally, "property interests are not created by the Constitution, but rather by `existing rules or understandings that stem from an independent source such as state law.'" Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).
"To have a property interest, a person clearly must have more than an abstract need or desire." Id. (internal quotation omitted). "A mere "unilateral expectation" of a benefit or privilege is insufficient; the plaintiff must "have a legitimate claim of entitlement to it." Id. (quoting Roth, 408 U.S. at 577). Additionally, "[a] reasonable expectation of entitlement is determined largely by the language of the statute and the extent to which the entitlement is couched in mandatory terms." Wedges/Leges of Ca. v. City of Phoenix, 24 F.3d 56, 62, (9th Cir. 1994) (internal quotation omitted). Thus, here, it appears that plaintiff could not state a claim regarding the permit denials under the holding in Woodwind Estates or relevant Ninth Circuit law because there is no comparable mandatory, non-discretionary provision in the County Code regarding permit applications.
Once a protected property interest is found, the plaintiff still must show that it was the victim of a governmental action that was arbitrary, irrational, or tainted by improper motive to sustain its substantive due process claim. Woodwind Estates, 205 F.3d at 124. Evidence that the government acted improperly for reasons unrelated to the merits of the permit application may support a finding that the government acted arbitrarily or irrationally. Id.
Here, defendants note, the County Code requires the County to act as it did. See MCC § 11.15.9052(B) (prohibiting the approval of permits for land use or development if the property is subject to an enforcement action). Thus, defendants argue, plaintiff cannot sustain a claim that the County acted arbitrarily, irrationally, or by improper motive. Defendants argue that the restriction is in fact related to the property involved because the Code governs all properties subject to an enforcement action. Thus, it is distinguishable from Woodwind Estates.
Plaintiff does not allege that the County Code is an arbitrary or capricious regulation. Rather, plaintiff argues that it has been denied permit applications pursuant to the County Code and that the denial violates plaintiff's substantive due process rights because it was not related to the property for which the permits were souqht. Plaintiff does not deny that its property is subject to an enforcement action or that the County Code requires the denial of permits for property subject to enforcement actions.
Given the County Code, I agree with defendants that plaintiff fails to state a substantive due process claim for the denial of permit applications based on Woodwind Estates or relevant Ninth Circuit law. Thus, allowing amendment would be futile.
Because allowing amendment would prejudice defendants and would be futile, the motion to amend is denied.
CONCLUSION
Defendants' motion to dismiss (#63) is construed as a motion for reconsideration and is denied. Defendants' motion for summary judgment (#56) is denied in part and granted in part. Plaintiff's motion to amend (#90) is denied.
IT IS SO ORDERED.