United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Aiken United States District Judge.
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.
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. 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.
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.
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.
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; 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.
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.
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.
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.
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.
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