Ninth Circuit Dismisses Takings Claims Related to Highway Development

This post was authored by Amy Lavine, Esq.

Emmert claimed that the county had advised interested buyers that his property had been set aside for the highway and couldn’t be purchased. But as the court explained, this allegation alone did not show that any “final decision” had actually been made. He also claimed that the county had impeded his attempts to lease one of his parcels by refusing to grant occupancy permits to his potential tenants. This allegation was still insufficient to state a ripe takings claim, however, because he hadn’t sought any other development approvals and thus it wasn’t clear that the county “would deny approval for all uses that would enable [Emmert] to derive economic benefit from the property.” In another allegation, Emmert claimed that the county had “refused to allow any construction” on his property until he completed a comprehensive plan, but the court held that this claim was also unripe because he hadn’t made any attempt to submit a comprehensive plan.

In his final takings challenge, Emmert alleged that the county initially indicated it would buy certain properties but then subsequently declined to go through with these purchases. But the mere “indication” that the county would purchase a property did not amount to a final action, the court explained. Moreover, if the county ultimately decided not to acquire the properties, then there would be no actionable taking for Emmert to challenge.

Emmert v. Clackamas County, 2019 WL 1375615 (9th Cir. 3/22/19).