Robertson v. City of Turner

69 P.3d 738, 187 Or. App. 702, 2003 Ore. App. LEXIS 631
CourtCourt of Appeals of Oregon
DecidedMay 15, 2003
Docket00C-15510; A113871
StatusPublished
Cited by1 cases

This text of 69 P.3d 738 (Robertson v. City of Turner) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robertson v. City of Turner, 69 P.3d 738, 187 Or. App. 702, 2003 Ore. App. LEXIS 631 (Or. Ct. App. 2003).

Opinion

SCHUMAN, J.

Plaintiffs brought this action against defendant, the City of Turner, after it closed a hazardous bridge that provided the only motor vehicle access to plaintiffs’ residential property. The trial court granted the city’s motion for summary judgment, holding that, until plaintiffs had pursued a statutory way of necessity against a third party, their claim was not ripe for adjudication. Because the relevant facts are undisputed, we review only for legal error. We affirm.

Plaintiffs own approximately 20 acres in Turner. Their property lies to the south of a small stream and contains their residence, a horseback riding arena, and a pasture. The only roadway to plaintiffs’ property is Gaston Street, which runs approximately 100 yards and connects plaintiffs’ driveway to the Fourth Street Bridge. The bridge crosses the stream and connects Gaston Street to the rest of Turner. Although eight parcels of land are served by the bridge, plaintiffs’ is the only one with a residence. Between plaintiffs’ property and the nearest alternate roadway that could provide access, Wipper Road, lies privately owned, roadless property.

The origins of the Fourth Street Bridge are unclear, but the parties agree that it is now owned by the city. The bridge itself is a rotting wooden plank structure that lacks such normal safety features as rails, and it has incurred significant damage during floods. Consequently, in 1998, the Oregon Department of Transportation (ODOT) recommended that the bridge be either repaired, replaced, or closed. After holding public hearings (at which plaintiffs, among others, testified), defendant adopted an ODOT-approved plan calling for closure.

Defendant informed plaintiffs that the bridge was going to be taken out of service and gave them three options. They could take ownership of the bridge; they could pay the cost of bringing it up to the standards required by ODOT; or they could petition the county for a “way of necessity” to Wipper Road pursuant to ORS 376.155. A “way of necessity” is a “road established * * * to provide motor vehicle access from a public road to land that would otherwise have no [705]*705motor vehicle access!.]” ORS 376.150(2)(a). Defendant told plaintiffs that, if they chose that third option, they would be responsible for all associated costs.

Plaintiffs took their options under advisement and continued using the bridge by moving the portable barricades that blocked it. They also initiated this action against defendant, alleging (among other claims not part of this appeal) so-called inverse condemnation, the short-hand description of “a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.” Thornburg v. Port of Portland, 233 Or 178, 180 n 1, 376 P2d 100 (1963) (citations omitted). In August 2000, before trial, defendant’s engineers recommended that defendant take the bridge out of commission completely because it posed a hazard to public safety. After holding more public hearings on the matter, defendant adopted a resolution affirming its earlier decision to close the bridge. Permanent barriers were erected. Thereafter, plaintiffs had no motor vehicle access to Gaston Street or their property.

Defendants moved for summary judgment, contending that defendant’s decision to close the bridge was not a taking “for public use,” as specified in Article I, section 18, of the Oregon Constitution,1 but an exercise of defendant’s authority to remove a dangerous public hazard, and that plaintiffs’ takings claim was not ripe for adjudication. The trial court agreed with defendant’s ripeness argument and granted the motion.

If we were to affirm bn ripeness, plaintiffs might then seek a way of necessity and thereafter pursue the then-ripe claim. To save plaintiffs that expense and to afford complete relief, we affirm the trial court on a more fundamental ground: Defendant’s action in closing the bridge was not an exercise of the eminent domain power to take private property for public use, even if the foreseeable result of the action [706]*706was that the value of plaintiffs’ property was reduced or eliminated. That being the case, no claim for “inverse condemnation” lies. See Dept. of Transportation v. Hewett Professional Group, 321 Or 118, 130-31, 895 P2d 755 (1995) (“taking” is predicate for inverse condemnation claim).

Most basically, the interpretation of Article I, section 18, put forward by plaintiffs cannot be derived from or reconciled with that provision’s language or its foundational premise. Section 18 guarantees just compensation when “private property” is “taken for public use.” Under plaintiffs’ theory, government must provide compensation when the use of public property is changed and the result is private nonuse. To achieve that inversion, plaintiffs argue that defendant’s “taking” is the destruction of plaintiffs’ own property, because closing the bridge has the incidental effect of eliminating one of plaintiffs’ property rights, that is, the right of access to their real estate. In addition, plaintiffs’ claim derives from the assumption that their right of access — the private property that government supposedly “takes” — is put to “public use” because the public benefits from its destruction. That reading of Article I, section 18, is at best implausible and at worst an affront to the idea that, generally speaking, words have meanings and sentences drafted by competent speakers of the language convey discrete thoughts — not to mention the idea that the interpretation of a constitutional provision should have some connection to its text.

Further, plaintiffs’ theory inverts the takings clause’s foundational purpose: to guarantee that no individual should have to pay the entire cost of a benefit that is shared by the general public at large. E.g., Cope v. City of Cannon Beach, 317 Or 339, 343, 855 P2d 1083 (1993) (quoting Agins v. Tiburon, 447 US 255, 260, 100 S Ct 2138, 65 L Ed 2d 106 (1980)). Here, the core of plaintiffs’ argument is, in effect, that all of defendant’s citizens should bear the cost of providing plaintiffs with a private benefit.

Finally, under well-settled Oregon case law, government action affecting private property exists along a continuum. At one end is actual physical appropriation of real or personal property, which obviously is the exercise of the [707]*707power of eminent domain and triggers the obligation of just compensation. At the other end of the continuum is the exercise of government’s authority to promote the health and safety of the populace — what is commonly referred to as exercise of the “police power.”2 Those exercises are not compen-sable takings of “private property for public use” under Article I, section 18. Hughes v. State of Oregon, 314 Or 1, 34, 838 P2d 1018 (1992); Eckles v. State of Oregon, 306 Or 380, 398, 760 P2d 846 (1988), appeal dismissed, 490 US 1032 (1989) (“Exercise of the ‘police power,’ unlike exercise of the ‘eminent domain power,’ does not require compensation.”). As the Supreme Court explained in Suess Builders v. City of Beaverton, 294 Or 254, 258-59, 656 P2d 306 (1982):

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69 P.3d 738, 187 Or. App. 702, 2003 Ore. App. LEXIS 631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-city-of-turner-orctapp-2003.