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Elizondo v. City of Junction City

United States District Court, D. Oregon, Eugene Division

May 21, 2017

JESSE ELIZONDO and RANDEE ELIZONDO, Plaintiffs,
v.
CITY OF JUNCTION CITY; MIKE CAHILL, Mayor of Junction City; RANDY NELSON, City Council President; BILL DeMARCO, City Council Member; HERB CHRISTENSEN, City Council Member; JIM LEACH, City Council Member; KAREN LEACH, City Council Member; and STEVEN HITCHCOCK, City Council Member, Defendants.

          OPINION AND ORDER

          Ann Aiken United States District Judge.

         In this action, plaintiffs Jesse and Randee Elizondo sued defendants the City of Junction City ("City"); Mike Cahill, the mayor of Junction City; and various members of the City Council for the City of Junction City ("City Council"), seeking to enjoin defendants from cutting down a century-old tree growing front of plaintiffs' residential property. Plaintiffs assert that defendants' decision to cut down the tree violates their civil rights under the United States and Oregon Constitutions. Defendants now move for summary judgment. For the reasons set forth below, defendants' motion is granted.

         BACKGROUND

         Plaintiffs are a husband and wife who own real property at the corner of 6th Avenue and Kalmia Street in Junction City, Oregon. Elizondo Decl. ¶ 2 Sept. 30, 2015 (doc. 7). A large bigleaf maple tree ("the tree") sits in front of plaintiffs' house and yard, within the City's right-of-way for sidewalks. Id. ¶ 3; Kurtz Decl. Ex. 6 Mar. 23, 2017 (doc. 52). The tree is outside the boundary of plaintiffs' property.[1] Pannell Decl. ¶ 5 & Ex. 1 Oct, 16, 2015 (doc. 55). It is eighty feet tall and more than one hundred years old. Elizondo Decl. ¶¶ 3, 8 Sept. 30, 2015; Elizondo Decl. ¶ 2 & Ex. H Nov. 2, 2015 (doc. 20). Plaintiffs have maintained the tree for the past twenty-five years, including by performing maintenance at the City's request. Elizondo Decl. ¶ 7 Sept. 30, 2015. Plaintiffs assert the tree "by itself has value to them, and that it also increases the value of their property, provides shade and aesthetic benefit to the neighborhood, and serves as a habitat for migratory birds and other wildlife. Id., ¶¶ 9-11.

         According to the City Administrator, the City is engaged in the Safe Routes to School Project ("the Project"). Knope Decl. ¶ 2 Oct. 15, 2015 (doc. 54). The Project involves modifying streets in the vicinity of Junction City High School to comply with Americans with Disabilities Act ("ADA") and other safety standards. Id. Among other improvements, the plan calls for the construction of ADA-compliant ramps at the intersection of 6th Avenue and Kalmia Street, where plaintiffs' property and the tree are located. Id. The tree poses an obstacle to construction of the ramps because its root system has severely buckled the surrounding curb and sidewalk. Id. ¶ 4 & Exs. 1-7. The City notified plaintiffs that it intended to remove the tree to permit construction of the ramps. Id. ¶ 6.

         Plaintiffs have persistently and vigorously opposed the City's plan to destroy the tree, In an efforts to save the tree, they have lobbied City staff and City Council members; testified at meetings of the City Council's Sewer and Streets Committee ("Streets Committee"); paid for a complete evaluation, including tomography (similar to an MRI), to assess the tree's health; obtained a second evaluation of the tree from a certified arborist; nominated the tree for "Oregon Champion Tree" status, and gathered signatures on a "Help save our tree petition." Elizondo Decl. ¶¶ 12, 13, 17, & Ex. A Sept. 30, 2015; Elizondo Decl. Exs. I & J Nov. 2, 2015; see also Kelly Anderson, Junction City man fights efforts to remove tree from corner (KVAL television broadcast Oct. 14, 2015); Saul Hubbard, Root of the Problem: Junction City man tries to save massive tree from the saw, The Register-Guard, Oct. 7, 2015, at Bl.

         In August 2015, at the recommendation of the Streets Committee, the City Council decided to cut down the tree, Kurtz Decl. Ex. 5 Mar. 23, 2017. The Streets Committee reached its recommendation after devoting time at a series of three public meetings to consider what to do about the tree, including taking evidence from plaintiffs. Id. Ex. 2-4. City Council members cited various concerns in support of their decision, including the damage to the sidewalk, id. Ex, 4;[2] the higher cost alternative ramp designs that could allow the tree to remain standing, id. Ex. 2; the tree's health and life expectancy, id.; a desire for a uniform type of ADA ramp on all four corners of the intersection, id; the possibility of future improvements to the street, including the addition of bike lanes, id.; and the need for visual clearance at the intersection for vehicles and pedestrians, id. Ex. 6.

         Plaintiffs allege that none of defendants' justifications for cutting down the tree are supported by the evidence. Regarding the undisputed damage to the sidewalk and curb, plaintiffs proposed three alternate ramp designs that would be ADA-compIiant while saving the tree. In addition to suggesting use of the bulb-out ramps considered by the Streets Committee, plaintiffs introduced an expert declaration stating that an ADA ramp could be constructed without harming the tree by taking some material off the top of the roots, covering them with sand and gravel, and building the ramp on top. Harper Decl. ¶ 3 (doc. 19). Finally, plaintiffs proposed giving the City part of their property so a sidewalk could be built around the side of the tree closest to their house. Elizondo Decl. ¶ 15 Sept. 30, 2015. Acknowledging that these alternative designs would cost more than cutting down the tree and building standard ADA ramps, plaintiffs offered to help pay the difference. Id. Plaintiffs introduced evidence that the City has approved the construction of bulb-outs around other trees, albeit on straight stretches of road rather than at intersections. Elizondo Decl. ¶ 14 & Exs. C-E Sept. 30, 2015.

         With respect to defendants' concerns about visual clearance, plaintiffs submitted a photo and a video pmporting to show that the tree does not actually block visibility at the intersection. Id., Ex. F; Elizondo Decl. Ex. L Nov. 2, 2015. They also allege that the City generally does not enforce the visual-clearance provision of the City code. Plaintiffs support that allegation with photos of trees located at other intersections near their property, asserting those trees create "visual obstruction at least as serious as our tree[.]" Elizondo Decl. Ex. G Sept. 30, 2015. They also state that although there have been at least thirty visual-clearance complaints made to the City since 2002, none of the other trees have been cut down. Dugan Decl. ¶ 2 & Ex. A Apr. 17, 2017.

         After the City Council announced its decision, plaintiffs filed this action in federal court, asserting defendants' plan to destroy the tree violates the Takings Clause, Due Process Clause, and Equal Protection Clause of the United States Constitution, as well as the Takings Clause of the Oregon Constitution. See Compl. (doc. 1). That same day, plaintiffs filed a motion seeking a preliminary injunction preventing defendants from cutting down the tree during the pendency of this litigation. See Pis.' Mot. TRO & Prelim. Inj. (doc. 5). After oral argument, this Court denied the motion for a preliminary injunction. Elizondo v, City of Junction City, 2016 WL 659082, at *6 (D. Or. Feb. 16, 2016), aff'd, 669 F.App'x 855 (9th Cir. 2016) (unpublished). Even though the Court did not award preliminary injunctive relief, defendants have not cut down the tree. Kurtz Decl. ¶ 2.

         Defendants now move for summary judgment, arguing that no question of material fact remains as to plaintiffs due and process and equal protection claims and that plaintiffs' takings claims are not yet ripe.

         STANDARDS

         Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, " Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine issue of material fact. Id.; Cehtex Corp. v. Catrett,477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the ...


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