United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge
Michael Cassidy and Anthony Schlauch operated a seventeen
room motel in the City of Glendale's commercial zone as
long-term multi-family residential housing. They have done so
without obtaining an R-2 Certificate of Occupancy or a
Conditional Use Permit as required by city ordinance. As a
consequence, the City assessed civil penalties on the
motel's property owner, Cow Creek Properties, LLC. In
turn, Cow Creek Properties brought an eviction complaint
(Commercial FED) against Pacific Community Resource Center.
Michael Cassidy, Anthony Schlauch and Pacific Community
Resource Center now bring this lawsuit alleging a violation
of their due process rights and improper taking of property.
Plaintiffs have named as defendants: (1) the City of Glendale
and fifteen current and former city officials to include the
mayor, council members, and city's compliance officer;
(2) Ryan Kirchoff, the attorney who represented Cow Creek
Properties in the underlying eviction proceeding; and (3)
three sitting Douglas County Circuit Court judges, Douglas
County, and State of Oregon for their actions in adjudicating
over the multiple state proceedings.
this Court are four motions: Plaintiffs' Motion for
Summary Judgment (ECF No. 34); Defendants Larry Caldwell and
Allen King's Motion for Summary Judgment (ECF No. 19
& 20); Defendants Douglas County Circuit Court Judges,
Courts and State of Oregon's Motion to Dismiss (ECF No.
12); and Defendant Ryan Kirchoff's Motion to Dismiss (ECF
plaintiffs' Motion for Summary Judgment fails to
demonstrate how specific facts entitle them to judgment as a
matter of law, plaintiff's motion is DENIED.
the Rooker-Feldman doctrine precludes a federal
district court from reviewing either the constitutionality or
legal correctness of a state court decision, Defendants Larry
Caldwell and Allen King's Motion for Summary is GRANTED
as is the Motion to Dismiss filed by the State, the judges,
and the courts. Judges and Courts are also entitled to
Eleventh Amendment and judicial immunity.
plaintiffs' claims against defendant Ryan Kirchoff fall
within the ORS 31.150(2) anti-SLAPP provision, Defendant Ryan
Kirchoff's Motion to Dismiss is GRANTED and those claims
are stricken and dismissed. Kirchoff is awarded his attorney
fees and costs pursuant to ORS 31.152(3).
the Rooker-Feldman doctrine applies equally to the
claims asserted against the remaining defendants who have not
yet been served or appeared, all remaining claims are
DISMISSED sua sponte without leave to amend.
Pacific Community Resource Center entered in a performance
contract to purchase a motel located in the City of
Glendale's commercial zone at 127 Pacific Ave., Glendale,
Oregon from Gary Martin and Cow Creek Properties, LLC. 2d Am.
Compl. 5-7, ECF No. 10. Shortly thereafter, plaintiff Cassidy
approached the City of Glendale to obtain permission to rent
rooms to small businesses. The City agreed but did not
require Pacific Community to affect a change in the use and
occupancy classification with the Douglas County Building
about September 11, 2011, plaintiff Cassidy approached the
City with regard to operating the motel as multi-family
residential housing. Opinion and Order 3; ECF No. 108,
Pacific Community Resource Center, v. City of Glendale,
Oregon, , Case No. 6:13-cv-1272-MC. He learned that to
operate as multi-family residential housing it would be
necessary for the motel to obtain an R-2 Certificate of
Occupancy or a Conditional Use Permit. Plaintiffs alleged
that the City responded by telling them that an R-2
certificate was not available to them and that the City did
not want their “kind of people” in town.
about October 21, 2011, the City sent a letter to Pacific
Community indicating that Pacific Community was in potential
violation of ordinances regarding residential use in a
commercial zone. Pacific Community communicated with the City
Council multiple times to discuss zoning compliance
alternatives, but the two parties were unable to reach an
about December 3, 2011, plaintiff Cassidy received notice for
a zoning ordinance violation from the City of Glendale.
Cassidy contested this violation but was ultimately convicted
at trial before a state circuit court judge on or about May
10, 2012, for operating the motel as multi-family residential
housing without first obtaining an R-2 Certificate of
Occupancy or a Conditional Use Permit.
Community then attempted to obtain an R-2 Certificate of
Occupancy by initiating a series of inspections with the
State Fire Marshall. The first inspection (February 24,
2012), resulted in a report identifying eleven deficiencies.
A subsequent inspection on May 10, 2012, resulted in a report
showing that ten deficiencies were resolved and that the only
remaining deficiency “was failure to obtain a
certificate of occupancy” (COO). On May 11, 2012,
Pacific Community approached the City to acquire a COO
sign-off. City officials refused to provide plaintiffs with
this sign-off. As a result, Douglas County did not issue the
R-2 COO to plaintiffs.
April 9, 2012 while Pacific Community was working to obtain
an R-2 Certificate of Occupancy, the City Council unanimously
adopted ordinance GMO 03-2012 which removed multi-family
residential housing from the permitted uses in the City's
commercial zone. 2d Am. Compl. 6, ECF No. 10. Plaintiffs
unsuccessfully challenged the removal of “multi-family
housing” under GMO 03-2012 through the Land Use Board
of Appeals. See Cassidy v. City of Glendale, Or.
Land Use Bd. of App. No. 2012-033 (Oct. 10, 2012),
May 11, 2012, and January 21, 2013, plaintiffs unsuccessfully
sought a COO through Douglas County. On January 21, 2013, the
City of Glendale issued plaintiffs a notice of building code
civil penalty for violation of Oregon Structural Specialty
Code (OSSC) § 111.1 Use and occupancy. On August 22,
2013, Cow Creek received an invoice stating the civil
penalties balance amounted to $30, 000. By September 16,
2013, this balance had increased to $65, 000.
federal court litigation against City of
the second federal lawsuit that plaintiffs Pacific Community
Resource Center and Michael Cassidy have filed against the
City of Glendale. The first lawsuit is styled: Pacific
Community Resource Center, v. City of Glendale, Oregon,
, Case No. 6:13-cv-1272-MC. The prior lawsuit, filed July 25,
2013, also named as defendants: Fred Jensen acting as Mayor;
Betty Stanfil acting as City Manager; and the six individual
City Council Members.
prior federal lawsuit, the plaintiffs alleged violation of
federal and state fair housing laws, and violations of
plaintiffs' Fourteenth Amendment “substantive due
process” rights and Fourteenth Amendment “equal
protection” rights. The claims were based on the City
of Glendale's alleged discriminatory obstruction of
Pacific Community's efforts to obtain a conditional use
permit, selective enforcement of certificate of occupancy
requirements, and the City's adoption of ordinance GMO
03-2012. Opinion and Order 2-5; ECF No. 108, 6:13-cv-1272-MC.
Because of the gravity of the factual allegations against the
city regarding discriminatory intent, the court provided pro
bono counsel for plaintiffs. Those factual allegations were
not born out at trial.
February 5, 2015, at a hearing on defendants' motion for
summary judgment, the plaintiffs withdrew their due process
claim. Subsequently, there was a five-day jury trial where
judgment was entered in favor of all defendants on the
remaining claims. Judgment on the jury verdict was entered on
March 23, 2015. Plaintiffs appealed the jury verdict to the
9th Circuit Court of Appeals where the appeal is
pending as of the time of this Opinion and Order.
of Glendale sues to foreclose in state court
the conclusion of the federal trial, on April 9, 2015, the
City of Glendale brought an action in Douglas County Circuit
Court, State of Oregon, to foreclose on a lien. City of
Glendale v. Cow Creek Properties, LLC, , 15-CV-08731.
City's MSJ 3-4; ECF No 19. In that action, plaintiff
Michael Cassidy (who was not a party to that state action)
filed 12 motions, to include a Motion to Intervene, all of
which were denied by the Douglas County Circuit Court.
City's MSJ, Ex. 7; ECF No. 19. Plaintiffs Cassidy,
Schlauch, and “All Other Occupants” appealed to
the Oregon Court of Appeals, citing in part a ...