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Dodd v. Hood River County

ELR Citation: 28 ELR 20534
Nos. 97-35124, 136 F.3d 1219/(9th Cir., 02/13/1998)

The court holds that a state land use board decision precludes property owners from obtaining federal court relief of their takings claim under the U.S. Constitution. The landowners were prevented from building on their land due to an Oregon State law permitting dwellings to be built in forest use zones only if necessary and accessory to forest use. The court first holds that the issue in the two proceedings is identical because the question expressly and definitely presented in the federal suit is the same as that definitely and actually litigated and adjudged before the state land use board. The court next holds that the issue was actually litigated and essential to the state land use board's decision. The board expressly considered the landowners' evidence presented on the alleged value of the parcel, found the evidence to be unpersuasive, and based its conclusion that there was no taking on that finding. The court also holds that the landowners were given a sufficient opportunity to be heard on the land value issue. The landowners' own failure to request a full evidentiary hearing before the land use board should not enable them to avoid the operation of the issue preclusion doctrine now. The court then holds that the land use board proceeding is the type of proceeding to which the state courts would give preclusive effect. The substantial procedures available to the landowners in litigating the issue of the value of their land, as well as the review by the Oregon courts, demonstrate that it is fair and efficient for the landowners to be precluded from relitigating the issue. The court further holds that the landowners' previous reservation of the federal takings claim does not prevent the operation of the issue preclusion doctrine. Because the landowners were effectively able to reserve their federal constitutional claim for federal court, the reservation doctrine does not enable them to avoid preclusion of issues actually litigated in the state forum. To the extent that they fully litigated a necessary issue in the course of the state proceedings that is identical to an issue before the federal court, the landowners are precluded from taking a second bite of the apple.

The court next holds that because the proper resolution is beyond any doubt, it may consider and rule on the other takings factors that the district court did not address. The court then holds that the state government's interest in enacting the forest use zone statute and applying it to the landowners was legitimate. The statute was enacted to promote commercial timber practices by limiting dwellings that could adversely affect forest uses and practices, such as fire protection and the application of chemicals. The court also holds that the landowners lacked reasonable investment-backed expectations to build their residence. Any reasonable investment-backed expectations the landowners may have had were minimal at best and ephemeral at worst. The entire gravamen of their complaint was that they intended to build their retirement home on that parcel, not that they intended the parcel for any commercial investment.

Counsel for Plaintiffs
John M. Groen
Pacific Legal Foundation
10800 NE 8th St., Bellevue WA 98004
(425) 635-0970

Counsel for Defendant
Lisa E. Lear
Bullivant, Houser, Bailey, Pendergrass & Hoffman
300 Pioneer Tower
888 SW 5th Ave., Portland OR 97204
(503) 228-6351

Before Pregerson and Trott, JJ.