Courter v. City of Portland 280 Or App 39 (2017)

Under Article I, section 18, “whenever the government permanently physically occupies the property of a citizen, that physical occupation is a taking.”

Plaintiffs appealed the trial court’s grant of summary judgment in favor of Defendant, City of Portland (the City), dismissing Plaintiffs’ inverse condemnation claim and Plaintiffs’ request for declaratory relief under the Declaratory Judgments Act, ORS 28.010 to 28.160. Plaintiffs assigned error to the trial court’s determination that their claims were not ripe for adjudication. On appeal, Plaintiffs argued that the inverse condemnation claim was ripe because “a takings claim based on a permanent physical occupation of property is justiciable as soon as the government intrudes on that property.” The City responded that both of Plaintiffs’ claims are not ripe, because there are several steps that Plaintiffs must take—including rezoning their property and securing approval of a development plan—before a court can determine whether the placement of the pipes interferes with their ability to develop their property. Under Article I, section 18, of the Oregon Constitution, “whenever the government permanently physically occupies the property of a citizen, that physical occupation is a taking.” Also, a claim is ripe for adjudication if it “involves present facts, as opposed to future events of a hypothetical nature.” Dept. of Human Services v. K. L. R., 235 Or App 1, 4, 230 P3d 49 (2010). In this case, the City condemned an easement for the “placement of utilities” beneath an access road on plaintiffs’ property, in order to bury pipes to connect a water tank to the city’s water system. In Plaintiffs’ claims, the City agreed during to bury the pipes at a depth of at least 18 feet. However, it later buried them as shallow as four feet deep. The Court of Appeals held that Plaintiffs’ claims were ripe because “either [P]laintiffs are correct about the scope of the [C]ity’s easement, and the [C]ity has violated their property rights, or they are incorrect, and the [C]ity [i]s entitled to bury the pipes as it did.” Reversed and remanded.