Thomas Dodd and Doris Dodd v. Hood River County, an Oregon Municipal Corporation, and State of Oregon, Defendant-Intervenor-Appellee

Opinion by Judge ALDISERT; Dissent by Judge TANG.

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

I.

In November 1983, the Dodds purchased 40 acres of land in a Forest Use Zone in Hood River County, Oregon for $33,000, intending to build a retirement home. Buyers of land in the Forest Use Zone at that time were on notice that the property was zoned exclusively for forest use, that the State had outlined mandatory goals for the management of forest use land, that the Oregon Land Use Board of Appeals (“LUBA”) had issued an opinion binding Hood River County to adopt the restrictive zoning ordinance, and…

dissenting:

The majority opinion concludes that the Dodds’ case is ripe. I conclude the case is not ripe because the Dodds have not utilized state proceedings to obtain the just compensation required by the Fifth and Fourteenth Amendments. Accordingly, I dissent.

I.

My disagreement with the majority opinion centers around the second ripeness requirement, that the Dodds “seek compensation through the procedures the State has provided for doing so.” Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 , 105 S.Ct. 3108, 3120 , 87 L.Ed.2d 126 (1985). According to the Supreme Court, an unconstitutional taking consists of two components: taking of property and subsequent denial of just compensation. If a property owner receives just compensation through the process the government provides, the property owner does not have a taking claim. Id. at 194-95 , 105 S.Ct. at 3120-21 .

The Supreme Court in Williamson County did not state that claimants seeking just compensation from state or local governments need seek in state proceedings only the remedies provided by state law. Rather, the Court required claimants to utilize state “procedures” to…

59 F.3d 852 95 Daily Journal D.A.R. 8730 Thomas DODD and Doris Dodd, Plaintiffs-Appellants, v. HOOD RIVER COUNTY, An Oregon Municipal Corporation, Defendant-Appellee, and State of Oregon, Defendant-Intervenor-Appellee. No. 93-35207. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 14, 1994. Decided June 29, 1995. John M. Groen, Pacific Legal Foundation, Bellevue, WA, for plaintiffs-appellants. Lisa E. Lear, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, OR, for defendant-appellee. Stephanie L. Striffler, Asst. Atty. Gen., Salem, OR, for defendant-intervenor-appellee. Appeal from the United States District Court for the District of Oregon. Before ALDISERT * , TANG and THOMPSON, Circuit Judges. Opinion by Judge ALDISERT; Dissent by Judge TANG. ALDISERT, Circuit Judge. 1 This appeal requires us first to decide whether the district court erred in dismissing for lack of ripeness the Fifth Amendment taking claim brought by Appellants Thomas and Doris Dodd, owners of real estate in Hood River County, Oregon. If we conclude that the issue is now ripe for decision, we must then decide what contentions may now be met on the merits, and if so,…