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Judge rules in Sandy's favor

Lawsuit, filed in 2007, now has a smaller claim against the city

The city of Sandy, embroiled in a land-use lawsuit with the 4-J Land Company for about four years, received good news recently from a Clackamas County Circuit Court judge, who was asked by the city (before trial) to set aside several facets of the case.

This case involves a land developing company suing the city for compensation for land it says was 'taken' because the city required the developer to construct road access to the property and dedicate land for that road.

Acting for the Clackamas County Circuit Court, Judge Henry Breithaupt sided with the city in two of the potentially expensive claims.

In his recent ruling, Breithaupt said the city did not acquire land, but only required the developer to construct improvements that did not previously exist.

In a second decision, the judge sided with the city, which refused to pay 4-J owners for building a connecting access road across land owned by another corporation.

In summary, the judge's decisions confirmed the city has the right to tell developers, when land is subdivided, that landowners must provide and pay for access.

The decisions saved the city more than $2 million in a potential judgment.

A trial judge knowledgeable in the areas of law this case deals with is still to be selected to hear the remaining issues and, therefore, the trial date has been moved from Sept. 6 to a later date.

One of the significant remaining claims is whether or not the city's requirement for improvements on nearby roads is 'roughly proportional' to the subdivision's impacts.

In court documents, City Attorney Paul Elsner of Beery, Elsner and Hammond in Portland stated there is a clear discrepancy between the plaintiff's and defendant's attorneys on what is applicable to the rough proportionality test.

The plaintiff (4-J) contends it applies to the land and improvements such as a road, while the defendant (city of Sandy) contends it applies only to real property.

This case concerns a 23-acre subdivision near Jewelberry Avenue, first proposed to the city in early 2005 by 4-J Land Company.

By 2006, the city recommended development approval as long as certain conditions were met.

Among the conditions was the construction of Jewelberry Avenue north to Kelso Road and south to Bell Street as well as Bell Street south to Bluff Road.

Owners of 4-J Land Co., represented by attorney Caroline MacLaren of Black Helterline in Portland, denied responsibility to construct the streets, saying most of the street construction was off-site and involves the taking of private land by the city without payment.

In a court complaint, MacLaren cites the Oregon Constitution and the Fifth Amendment (U.S.) that say, 'Private property shall not be taken for public use . . . without just compensation.'

MacLaren has repeatedly stated the city's requirement is not 'roughly proportional' to the impacts of the subdivision.

She was speaking to the case law that Elsner cited, regarding the Dolan vs. city of Tigard decision against requiring anyone to construct improvements not directly related to the project.

The city's final word - with a series of conditions of approval for the subdivision - was issued in early 2007, which drew this lawsuit from 4-J's owners.

The complaint was filed in court even though it dealt with the rights of future lot owners to have access to their property.

Essentially, 4-J owners were asserting they did not want to pay to develop that access. The complaint said it was the city's responsibility.

Owners of 4-J also refused to pay to construct the roads even if they were promised credits for system development charges as well as an advanced financing (reimbursement) district.

In the intervening years, while this issue has been in court, 4-J has developed the property and built the roads - with the expectation a judge or jury would eventually rule in their favor and the city would have a large bill to reimburse the developer.

Whether a trial or a settlement will occur is still to be determined by the attorneys. And the identity of a trial judge also is being determined by officials of the Circuit Court.

Finally, the attorneys will decide if that judge or a jury will render the decision.