United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATIONS
YIM YOU, UNITED STATES MAGISTRATE JUDGE
East Side Plating, Inc. (“plaintiff or
“ESP”) brought this action against defendant City
of Portland (“defendant” or “the
City”) in Multnomah County Circuit Court, and the City
timely removed. SeeRemoval Notice, ECF #1. This
court has original jurisdiction over the action pursuant to
28 U.S.C. Â§Â§ 1331 and 1343(a)(3). Plaintiff alleges claims
for (1) declaratory relief, (2) injunctive relief, (3)
unconstitutional takings, and (4) denial of procedural due
process. Compl. Â¶Â¶ 17-45, ECF #1. Defendant has filed a
motion to dismiss for failure to state a claim under FRCP
12(b)(6). Def.'s Mot. to Dismiss (âDef.'s Mot.â), ECF
#6. For the reasons set forth below, defendant's motion
should be granted and this action should be dismissed with
is in the business of coating metal parts used in the
medical, dental, automotive, and electronics industries.
Compl ¶ 4, ECF #1. It has operated at 310 SE Stephens
Street in Portland ("the ESP property") since its
inception in 1946. Id. The ESP property is in the
Central Eastside Industrial District, an industrial
sanctuary. Id. ¶ 5. It abuts publicly
accessible streets to the north (SE Stephens Street) and west
(SE Third Avenue), and a triangular parcel to the south,
which abuts what was formerly SE Harrison Street. See
Id. ¶ 4; Map, ECF #7-1, at 36. The southeast wall
of ESP's facility runs along the property line, abutting
the triangular parcel. Compl. ¶¶ 4, 6, ECF #1; Map,
ECF #7-1, at 36. The southeast wall of the facility has a
large door, hereafter referred to as the "SE door."
Id. Â¶ 4.
ECF #7-1, at 36.
previously owned the triangular parcel, but in 1963, the
Oregon Department of Transportation (“ODOT”)
acquired it from plaintiff by eminent domain in preparation
for construction of the Mt. Hood Freeway. Id. ¶
4; Suppl. Findings and Conclusions 2, ECF #7-1, at 10. In
1974, the freeway project was canceled, and plaintiff has
continued to use the triangular parcel unabated. Compl.
¶ 4, ECF #1; Suppl. Findings and Conclusions 2, ECF
#7-1, at 10.
retrofitted its facility from 2011 to 2013 under permits
approved by the City, which among other things, mandated that
plaintiff use the SE door for emergency egress. Id.
¶ 5. As part of these upgrades, plaintiff installed
wastewater treatment equipment that removes metal ions from
its wastewater using sodium hydroxide. Id. ¶ 6.
Plaintiff receives large deliveries of sodium hydroxide from
tanker trucks via the triangular parcel and the land that was
formerly SE Harrison Street, and the deliveries are deposited
into a storage tank located just inside the SE door.
Id. These deliveries at the SE door are critical to
plaintiff's operations. Id. ¶ 7. Plaintiff
claims that if it “cannot accept deliveries of sodium
hydroxide at its current location, [it] would not be able to
continue operations at the site.” Id.
August 2015, the City purchased the triangular parcel from
ODOT, and in October 2015, the City's Office of
Management and Finance (“OMF”) petitioned to
vacate the portion of SE Harrison Street abutting the
triangular parcel to create a single parcel (“the City
property”). Compl. ¶ 7, ECF #1. Plaintiff
objected to the street vacation. Id. ¶ 8.
December 2015, the City's Planning and Sustainability
Commission voted to recommend that the proposed street
vacation be denied. Id. However, the City Engineer
recommended that the street be vacated over the
Commission's recommendation. Id. ¶ 9. The
City Council approved the vacation of SE Harrison Street by
passing Ordinance No. 187591 on February 18, 2016.
Id., Ex. 4, at 5, ECF #1, at 32.
No. 187591 includes language that “[t]he City shall
work in good faith towards a reasonable engineering design to
accommodate the delivery of chemicals to East Side
Plating.” Ordinance No. 187591 § c, ¶ 8, ECF
#7-1, at 4. The ordinance further recognizes:
OMF can maintain beneficial use of its property and still
provide 15 foot-wide access for trucks along part of the
northern edge of its property and 10 feet of buffered
emergency egress along the entire northern edge of the
property. A tractor and trailer with combined length of up to
75 feet will be able use the 15 foot-wide
Id. § 1, ¶ 9 (a)-(b), ECF #7-1, at 2. It
Notice is given that the street vacation will not be
effective until a certified copy of the vacating Ordinance
has been recorded by the City in Multnomah County Deed
Records. Prerequisites to recording the vacating Ordinance
are that 30 days have passed after final Council passage of
the Ordinance, that all conditions of the vacating
Ordinance have been met, and that all vacation costs
have been paid.
Id. § 3, ECF #7-1, at 5. (emphasis added).
Supplemental Findings and Conclusions, attached as Exhibit 3
to Ordinance No. 187591, recognizes that “ESP does not
have a lease, access agreement, or other legal instrument
providing access to or use of [the triangular parcel] which
they access via SE Harrison St.” Suppl. Findings and
Conclusions 2, ECF #7-1, at 10. It also recognizes:
ESP's agreement with ODOT had historically been informal
and they do not have an agreement with OMF to access the OMF
property. Rights-of-way to the north and west of ESP's
property will remain intact and can provide alternative
access to the facility.
Id. at 7.
February 24, 2016, the Portland City Council approved the
relocation of a homeless camp, Right 2 Dream Too, to the City
property. In doing so, councilmembers made the following
remarks regarding ESP:
Amanda Fritz: We'll be working with
[E]ast [S]ide [P]lating to make sure they have access to
their viable business which has been a very clean business,
which has not polluted the air or the ground the way some
businesses that have been operating legally in the city of
Portland have been found to do. It's a safe place for
people to be they have 19 employees inside their building and
will now have new good neighbors who will be part of the
community on the central eastside. I believe will make sure
that it's a safer place to be for everyone.
Minutes at 56-57, Portland City Council Meeting (Feb 24,
Charles Hales: We are also about business.
We want to be a prosperous city. I want to reiterate what I
said last week at the hearing. We will make it work for you
at east side plating. You're a legitimate business. You
have a transportation need to solve. We have good engineers.
We are [sic] put them at your disposal and solve the problem
and we won't charge you a lot of money. In fact we
won't charge you any money because we want you to be a
successful business and I know you will be a good neighbor.
Id. at 59.
March 2016, OMF advised the City that it agreed “to
abide by and perform each and all of the applicable terms and
provisions” of Ordinance No. 187591. Compl., Ex. 5, ECF
#1, at 34. Plaintiff alleges that in June 2016, “at a
meeting at ESP, PBOT confirmed the work the City would do in
furtherance of access for the tanker trucks, including
installing a wider driveway and some curb work and circulated
plans for the homeless camp that included the fifteen-foot
wide ESP access alley.” Id. ¶ 11.
Plaintiff further alleges that it requested an easement from
OMF, but was offered an annually renewable permit.
to the Complaint, construction for Right 2 Dream Too began in
August 2016, but later that month, Oregon's Land Use
Board of Appeals denied approval of the site due to zoning
issues. Compl. ¶ 12, ECF #1; see also Ordinance
No. 188812 ¶¶ 4-5, https://efiles.
City recorded Ordinance No. 187591 on April 4, 2017. ECF #1.
Two months later, PBOT completed the street work portion of
the Harrison Street vacation and installed a driveway for ESP
running from SE 3rd Avenue to the SE Door. The driveway,
however, did not conform to the plans that the City had
presented to ESP, see Exhibit 3, and impaired ESP's
deliveries. Moreover, the driveway remained unpaved and in
gravel form with a construction fence outlining the
fifteen-foot access alley to ESP's SE Door.
Bureau of Internal Business Services (“BIBS”),
which was managing the City property, determined that it was
not suitable for active use, could not identify any future
uses, and deemed it “excess.” Ordinance No.
188812 § 1, ¶¶ 4, 5. BIBS offered the City
property to other bureaus in July 2017, but none were
interested. Id. § 1, ¶ 6. Accordingly,
BIBS decided to dispose of the property, notified the public
of its decision, and provided 60 days for public comment.
Id. § 1, ¶ 7. During the public comment
period, several property owners including plaintiff
“contacted BIBS to indicate interest in the
property.” Id. § 1, ¶ 8. Plaintiff
suggested purchasing the City property for $319, 000 or
alternatively an easement for $45, 000. Compl. ¶¶
13, 15, ECF #1.
February 7, 2018, Portland City Council passed Ordinance No.
188812, declaring the City property to be “surplus real
property, ” and authorized BIBS to “take all
steps necessary to dispose of the Property by sale,
disposition or exchange as determined commercially prudent,
under the best price, terms and conditions.” Ordinance
No. 188812 § 1, ¶¶ 10, a-b. In its Complaint,
plaintiff references this decision, noting that the City
Council “approved disposition of the City Property in
its entirety, ” with “no allowance for ESP's
continued access to its property.” Compl. ¶ 14,
ECF #1. Additional discussions between ESP and the City took