takings claim in Oregon

2005If there are available administrative procedures through which landowners may seek to modify the effects of regulations on the use of their property and those procedures provide a possibility that development could occur on the property, the landowners must pursue those administrative procedures before a takings claim may be considered “ripe.” See Suess Builders v. City of Beaverton, 294 Or 254 , 656 P2d 306 (1982) (property has not been taken where possibility of relief from regulatory restriction remains available); Boise Cascade Corp. v. Board of Forestry, 186 Or App 291, 303 , 63 P3d 598 ,

2005If there are available administrative procedures through which landowners may seek to modify the effects of regulations on the use of their property and those procedures provide a possibility that development could occur on the property, the landowners must pursue those administrative procedures before a takings claim may be considered “ripe.” See Suess Builders v. City of Beaverton, 294 Or 254 , 656 P2d 306 (1982) (property has not been taken where possibility of relief from regulatory restriction remains available); Boise Cascade Corp. v. Board of Forestry, 186 Or App 291, 303 , 63 P3d 598 ,

2024Therefore, we conclude that a property owner can bring a takings claim as soon as the state or other governmental entity physically occupies the owner’s property.11 11 It is possible that accrual of a “physical occupation” takings claim could be subject to a “discovery rule.” Generally speaking, under a “discovery rule,” a cause of action does not accrue “until the claim has been discovered or, in the exercise of reasonable care, should have been discovered.” FDIC v. Smith, 328 Or 420, 428 , 980 P2d 141 (1999).

2024Therefore, we conclude that a property owner can bring a takings claim as soon as the state or other governmental entity physically occupies the owner’s property.11 11 It is possible that accrual of a “physical occupation” takings claim could be subject to a “discovery rule.” Generally speaking, under a “discovery rule,” a cause of action does not accrue “until the claim has been discovered or, in the exercise of reasonable care, should have been discovered.” FDIC v. Smith, 328 Or 420, 428 , 980 P2d 141 (1999).

2006While the appeal and cross-appeal were pending, the Oregon Supreme Court decided Coast Range Conifers v. Board of Forestry, 339 Or 136 , 117 P3d 990 (2005), reversing this court’s decision in that case and holding that the “whole parcel” rule does apply to a takings claim under Article I, section 18, of the Oregon Constitution.

2006While the appeal and cross-appeal were pending, the Oregon Supreme Court decided Coast Range Conifers v. Board of Forestry, 339 Or 136 , 117 P3d 990 (2005), reversing this court’s decision in that case and holding that the “whole parcel” rule does apply to a takings claim under Article I, section 18, of the Oregon Constitution.

2005Larson v. Multnomah County, 121 Or App 119, 123-24 , 854 P2d 476 , adh’d to on recons, 123 Or App 300 , 859 P2d 574 (1993); accord Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 US 302, 339 , 122 S Ct 1465 , 152 L Ed 2d 517 (2002) (Fifth Amendment imposes “strict ripeness requirement” that protects the public interest in informed decision-making by requiring landowners to take reasonable and necessary steps to give regulatory agencies the opportunity to exercise full discretion to determine what uses are allowable before a landowner may bring a takings claim).

2005Larson v. Multnomah County, 121 Or App 119, 123-24 , 854 P2d 476 , adh’d to on recons, 123 Or App 300 , 859 P2d 574 (1993); accord Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 US 302, 339 , 122 S Ct 1465 , 152 L Ed 2d 517 (2002) (Fifth Amendment imposes “strict ripeness requirement” that protects the public interest in informed decision-making by requiring landowners to take reasonable and necessary steps to give regulatory agencies the opportunity to exercise full discretion to determine what uses are allowable before a landowner may bring a takings claim).

2005Larson v. Multnomah County, 121 Or App 119, 123-24 , 854 P2d 476 , adh’d to on recons, 123 Or App 300 , 859 P2d 574 (1993); accord Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 US 302, 339 , 122 S Ct 1465 , 152 L Ed 2d 517 (2002) (Fifth Amendment imposes “strict ripeness requirement” that protects the public interest in informed decision-making by requiring landowners to take reasonable and necessary steps to give regulatory agencies the opportunity to exercise full discretion to determine what uses are allowable before a landowner may bring a takings claim).

2005Larson v. Multnomah County, 121 Or App 119, 123-24 , 854 P2d 476 , adh’d to on recons, 123 Or App 300 , 859 P2d 574 (1993); accord Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 US 302, 339 , 122 S Ct 1465 , 152 L Ed 2d 517 (2002) (Fifth Amendment imposes “strict ripeness requirement” that protects the public interest in informed decision-making by requiring landowners to take reasonable and necessary steps to give regulatory agencies the opportunity to exercise full discretion to determine what uses are allowable before a landowner may bring a takings claim).

1993Assn., 452 US 264 , 101 S Ct 2352 , 69 L Ed 2d 1 (1981) (where a takings claim arose in the context of a facial challenge to a statute and thus presented no concrete controversy concerning the application of the statute or its effect on specific parcels of land, the Court considered on the merits whether the mere enactment of the act constituted a taking); Agins v. Tiburon, 447 US 255, 260 , 100 S Ct 2138 , 65 L Ed 2d 106 (1980) (same). 4 We turn, then, to the merits of petitioners’ claim.

1993Assn., 452 US 264 , 101 S Ct 2352 , 69 L Ed 2d 1 (1981) (where a takings claim arose in the context of a facial challenge to a statute and thus presented no concrete controversy concerning the application of the statute or its effect on specific parcels of land, the Court considered on the merits whether the mere enactment of the act constituted a taking); Agins v. Tiburon, 447 US 255, 260 , 100 S Ct 2138 , 65 L Ed 2d 106 (1980) (same). 4 We turn, then, to the merits of petitioners’ claim.

1993In dictum, Lucas speculated in several footnotes about what a takings analysis might be in other circumstances: “When, for example, a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole. * * * In any event, we avoid this difficulty in the present case, since * * * [the statute at issue] left each of Luca

1993Lucas, supra, 120 L Ed 2d at 820 .

2014Comm., 274 Or 49, 55 , 545 P2d 105 (1976)); or cases involving physical occupations of a kind that amount to an ongoing easement (e.g., Cereghino, 230 Or at 446 ). 9 The principal cases touching on the intent element of a takings claim between the time that Morrison and Vokoun were decided were Tomasek, 196 Or 120 , and Hawkins, 315 Or 57 .

2014Comm., 274 Or 49, 55 , 545 P2d 105 (1976)); or cases involving physical occupations of a kind that amount to an ongoing easement (e.g., Cereghino, 230 Or at 446 ). 9 The principal cases touching on the intent element of a takings claim between the time that Morrison and Vokoun were decided were Tomasek, 196 Or 120 , and Hawkins, 315 Or 57 .

2014Comm., 274 Or 49, 55 , 545 P2d 105 (1976)); or cases involving physical occupations of a kind that amount to an ongoing easement (e.g., Cereghino, 230 Or at 446 ). 9 The principal cases touching on the intent element of a takings claim between the time that Morrison and Vokoun were decided were Tomasek, 196 Or 120 , and Hawkins, 315 Or 57 .

2014Comm., 274 Or 49, 55 , 545 P2d 105 (1976)); or cases involving physical occupations of a kind that amount to an ongoing easement (e.g., Cereghino, 230 Or at 446 ). 9 The principal cases touching on the intent element of a takings claim between the time that Morrison and Vokoun were decided were Tomasek, 196 Or 120 , and Hawkins, 315 Or 57 .

2014This court first articulated intent as an element of a takings claim in Gearin v. Marion County, 110 Or 390, 402 , 223 P 929 (1924).

2014This court first articulated intent as an element of a takings claim in Gearin v. Marion County, 110 Or 390, 402 , 223 P 929 (1924).

2014For example, although “government regulation of the use of property or planning for the eventual taking of property for public use that reduces the property’s value generally does not result in a de facto taking,” a property owner can make out a takings claim by showing that the “regulation or planning action deprives the owner of all economically viable use of the property.” Hall, 355 Or at 522 .

2010The court concluded that agreements falling into the first three categories resulted in contractual rights to receive water and that a contractual interest is not a property interest that gives rise to a takings claim under the Fifth Amendment. [4] Id. at 531-32 .

2007“Upon review of a denial of a motion for a directed verdict, we will not set aside a jury verdict ‘unless we can affirmatively say that there is no evidence from which the jury could have found the facts necessary to establish the elements of [the] plaintiffs cause of action.’ ” Conway v. Pacific University, 324 Or 231, 235 , 924 P2d 818 (1996) (quoting Brown v. J.

2007“Upon review of a denial of a motion for a directed verdict, we will not set aside a jury verdict ‘unless we can affirmatively say that there is no evidence from which the jury could have found the facts necessary to establish the elements of [the] plaintiffs cause of action.’ ” Conway v. Pacific University, 324 Or 231, 235 , 924 P2d 818 (1996) (quoting Brown v. J.

2005If there are available administrative procedures through which landowners may seek to modify the effects of regulations on the use of their property and those procedures provide a possibility that development could occur on the property, the landowners must pursue those administrative procedures before a takings claim may be considered “ripe.” See Suess Builders v. City of Beaverton, 294 Or 254 , 656 P2d 306 (1982) (property has not been taken where possibility of relief from regulatory restriction remains available); Boise Cascade Corp. v. Board of Forestry, 186 Or App 291, 303 , 63 P3d 598 ,

2005If there are available administrative procedures through which landowners may seek to modify the effects of regulations on the use of their property and those procedures provide a possibility that development could occur on the property, the landowners must pursue those administrative procedures before a takings claim may be considered “ripe.” See Suess Builders v. City of Beaverton, 294 Or 254 , 656 P2d 306 (1982) (property has not been taken where possibility of relief from regulatory restriction remains available); Boise Cascade Corp. v. Board of Forestry, 186 Or App 291, 303 , 63 P3d 598 ,

2005As we explained in Nelson v. City of Lake Oswego, 126 Or App 416, 421 , 869 P2d 350 (1994) (quoting MacDonald, Sommer & Frates v. Yolo County, 477 US 340, 348 , 106 S Ct 2561 , 91 L Ed 2d 285 (1986)), it follows from the nature of a regulatory claim that an authoritative *390 determination of how the regulation applies to the property is an “ ‘essential prerequisite’ ” to asserting a takings claim in court.

2005As we explained in Nelson v. City of Lake Oswego, 126 Or App 416, 421 , 869 P2d 350 (1994) (quoting MacDonald, Sommer & Frates v. Yolo County, 477 US 340, 348 , 106 S Ct 2561 , 91 L Ed 2d 285 (1986)), it follows from the nature of a regulatory claim that an authoritative *390 determination of how the regulation applies to the property is an “ ‘essential prerequisite’ ” to asserting a takings claim in court.

2005Development v. City of Sherwood, 159 Or App 125 , 977 P2d 392 , rev den, 329 Or 61 (1999), cert den, 528 US 1075 (2000) (same).

2005Development v. City of Sherwood, 159 Or App 125 , 977 P2d 392 , rev den, 329 Or 61 (1999), cert den, 528 US 1075 (2000) (same).

2005Development v. City of Sherwood, 159 Or App 125 , 977 P2d 392 , rev den, 329 Or 61 (1999), cert den, 528 US 1075 (2000) (same).