Opposition Brief — Hoeck v. City of Portland

Supreme Court, US,

[eLen

aaa JAN 12 1996

— UTTERK

SUPREME COURT OF THE UNITED STATES

October Term, 1995

HANS HOECK,

Petitioner,

v.

CITY OF PORTLAND,

Respondent.

+

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

4

RESPONDENT?’S BRIEF IN OPPOSITION

4

Terence L. Thatcher

Counsel of Record

OFFICE OF CITY ATTORNEY

1220 S.W. Fifth Ave., #315

Portland, OR 97204

Telephone: (503) 823-4047

Of Attorneys for Respondent

January 12, 1996 City of Portland

TABLE OF CONTENTS

Page

pg ae ey eae eee

ee I Bra tiaN irs te Foca. bres Olea lhe elakelals il

STATEMENT OF THE CASE .....cceeseecs 2

REASONS WHY THE PETITION SHOULD BE

EE ire sn ea ag eal a ee eee 88 10

I. The Court should reject the petition

because Hoeck seeks review of a Fifth

Amendment issue that was not before the

Ninth Circuit and is not, therefore,

properly before this Court. ........ 10

IT. Even if there were a Fifth

Amendment takings issue in this

case, the facts of this case do not

present the issue as Hoeck frames it.

ee eee ee ee eer ee ee eee 14

og Se eee ee ee ee A-1, A-2

i

TABLE OF AUTHORITIES

Page

CASES

Albright v. Oliver, _ US. :

114 S.Ct. 804; 127 L.Ed.2d 14 (1994) ........ 12

Hoeck v. City of Portland, Multnomah

County Circuit Court No. 9005-02917 .......... 7

State ex rel Federal Deposit Insurance

Corporation v. City of Portland, Multnomah

County Circuit Court No. 9105-02792 .......... 8

Village of Euclid v. Ambler Realty Co.., |

£14 U.S. ae CE eee ae 12

Williamson County Regional Planning |

Commission v. Hamilton Bank, 473 U.S.

372 CISGS) on 0s oe eee eee 11

UNITED STATES CONSTITUTION

Pam Amen won 6 ds eee 11-13

Fourteenth Amendmemt .... 0... ccc e cee ees 12

OREGON CONSTITUTION

Article I, section 18 of the Oregon

constitution

CITY OF PORTLAND CODE

Portland City Code Chapter 24.55 . : 4

Portland City Code § 24.55.500 vy)

No. 95-748

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1995

HANS HOECK,

Petitioner,

v.

CITY OF PORTLAND,

Respondent.

.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

*

RESPONDENT’S BRIEF IN OPPOSITION

+

Petitioner Hans Hoeck asks this Court to review the

ruling of the Ninth Circuit Court of Appeals upholding the

City of Portland’s demolition of his derelict building. The

2

Court of Appeals Opinion is reported at 57 F.3d 781 (1996).

The Court should deny the petition. Hoeck asks the Court

to review a federal question that was not before the Ninth

Circuit, that is, whether the City’s actions violated the

Takings Clause of the Fifth Amendment to the United States

Constitution. In addition, Hoeck’s petition misportrays the

facts of this case.

STATEMENT OF THE CASE

In 1984, Hans Hoeck bought a vacant six-story structure

commonly known as the Bridgeport Hotel on Burnside

Avenue, a main thoroughfare running east and west through

downtown Portland, Oregon. During 1984 and 1985, Hoeck

made plans to gut the structure, add four floors, and convert

it to an office building.

Hoeck received a City of Portland building permit for his

project in the spring of 1985 and commenced work. Over

the next three months he gutted the structure, supplemented

the foundation, and added steel superstructure for an

additional four floors.

In July, 1985, the City caused work on the site to be

restricted after determining that Hoeck needed to obtain

additional land use approvals to raise the building by four

floors. Those land use approvals and revised building

permits were granted in early February, 1986, so that

construction could recommence.

During this same time, State Federal Savings and Loan,

from which Hoeck had received a commitment for

permanent financing for the renovation project, was declared

3

insolvent. Its operations were taken over by the Federal

Savings and Loan Insurance Corporation (FSLIC) and later

by the Federal Deposit Insurance Corporation (FDIC). In

early March, 1986, FDIC disavowed the State Federal

Savings and Loan financing commitment to Hoeck.

Hoeck tried unsuccessfully to obtain substitute financing.

In the mean time, construction work on the Bridgeport

project ceased and it stood uncompleted and unoccupied. '

The appendix contains photographs of the structure taken in

1989, which were part of the administrative and judicial

record below.

For three years, the Bridgeport stood vacant, half built,

and open to the elements. Finally, after receiving complaints

from neighbors, the City’s Bureau of Buildings commenced

administrative proceedings under the City Code against the

structure as an abandoned and dangerous building.’ The

Buildings Bureau asked that Hoeck be required either to

complete the Bridgeport Hotel structure or remove it. As

' The record does not support Hoeck’s suggestion that the City

“caused the building to become abandoned" because it caused Hoeck’s

financing to fall through. Petition for Certiorari at 17. The record

+nows the contrary. The City did suspend Hoeck’s building permit in

mid-1985, when it determined that the permit had been improperly

granted. But the City had granted a new, proper permit by February,

1986. Hoeck’s financing was not withdrawn until March, 1986.

? Portland City Code provides that the City may, after notice and

opportunity for hearing, order restoration or demolition of abandoned

or dangerous structures. Portland City Code Chapter 24.55.

Petitioner's Appendix, G-1 to G-5.

4

required by code, the case was assigned to a Code Hearings

Officer for hearing.

The first of six administrative hearings was held in June,

1989. Mr. Hoeck was represented by counsel. Among

other things, the Hearings Officer found that:

The structure was open to entry and was a harbor for

vagrants and criminals. Repeated and regular police

action was required to remove unauthorized persons

from the premises and to deal with crimina! and other

illegal activities within the structure.

The interior of the structure contained large amounts

of trash, debris, and human waste products which

presented a hazard to persons in and about the

structure, including police and other emergency

personnel required to enter the structure.

All windows had been removed... which presented a

fall hazard to persons within the structure, including

police and other emergency personnel .... The

absence of windows also allowed weather entry into

and deterioration of the structure and allowed the

entry of vagrants, criminals, and trespassers.

Numerous holes had been cut in the structure’s floors

which were open and unguarded and which presented

a fall hazard to person in the structure, including

police and other emergency personnel....

The plumbing fixtures had been removed and the

drains were open creating a risk of sewer gases

entering from the open drains. This ...[was] both a

ee

5

health and fire hazard to persons in and around the

Structure.

The concrete support beams had been broken and the

reinforcing steel exposed and rusted. The existing

steel structure of the building was rusted and

deteriorated. This present[ed] a hazard of collapse or

failure under adverse conditions such as earthquake

or fire.

Hearings Officer’s Order, November 24, 1989, Petitioner’s

Appendix, F-6 to F-7.’

The Hearings Officer found that the numerous building

code and safety violations at the Bridgeport "present[ed] an

immediate hazard to the health, life, and safety" of persons

in and around the building. Hearings Officer’s Order, June

2, 1989, Petitioner’s Appendix, F-4. He directed Hoeck to

take a number of steps to secure the structure from entry, to

police the structure to prevent unauthorized entry, to

"improve [its] safety and sanitation ... and to reduce and

ameliorate its deleterious effect on the surrounding

neighborhood...." /d., Petitioner’s Appendix, F-3.

The second hearing before the Hearings Officer occurred

in November, 1989. The Officer found that although Hoeck

had taken some steps consistent with the June, 1989, order,

he had failed to remedy many of the violations. The

Hearings Officer found that the structure "remains in a

> The order from the November, 1989, hearing contains findings

and conclusions covering both the June and November, 1989,

hearings.

6

dangerous and abandoned status." Petitioner’s Appendix,

F-7. The Hearings Officer imposed a civil penalty against

Hoeck of $500 and directed him to comply with the earlier

order. He did not, however, order the building demolished.

Instead, he continued the hearing again to February, 1990,

to allow Hoeck time to arrange to complete the building.

Petitioner's Appendix, F-12.

On March 1, 1990, another hearing was held. Mr.

Hoeck was still in violation of the earlier orders and

presented no plans or financing arrangements to do anything

with the Bridgeport. The building stood, as it had for four

years, an empty carcass, dangerous, and derelict, a haven

for drug abuse and crime. The Hearings Officer affirmed

his findings that the structure was abandoned and dangerous

and ordered its demolition within 90 days. Hearings

Officer’s Order of March 1, 1990, Petitioner’s Appendix,

F-15.

Hoeck, as allowed by Oregon law, filed a Writ of

Review in Multnomah County Circuit Court, challenging the

Hearing Officer’s decision. Among other things, Hoeck

argued that his due process rights under the Fourteenth

Amendment to the United States Constitution had been

violated. Hoeck v. City of Portland, Multnomah County

Circuit Court No. 9005-02917, First Amended Petition for

Review, (July 3, 1990), 4s 16, 17, 18, 19, 20. He did not,

however, assert that the order to demolish the building

constituted a "taking" under either the federal or state

constitutions. The Circuit Court denied the writ and issued

a judgment affirming the Hearing Officer’s demolition order.

The judgment was signed October 26, 1990. Petitioner’s

Appendix, E-1 to E-2. Hoeck did not appeal that judgment.

The Bridgeport was still standing at that time, nearly 18

7

months after the City initiated its first administrative

enforcement proceeding in 1989.

Even though Hoeck’s state court case was resolved in

favor of the City, he ignored the order to demolish the

building. Thereupon, Portland City Council directed the

City’s Bureau of Buildings to hire a contractor to raze the

Bridgeport. The work was to commence on May 17, 1991.

On May 15, 1991, however, the Federal Deposit Insurance

Corporation (FDIC) petitioned the Multnomah Circuit Court

for a writ of mandamus and injunction preventing the

destruction. State ex rel Federal Deposit Insurance

Corporation v. City of Portland, Multnomah County Circuit

Court No. 9105-03202. FDIC claimed that the City’s action

was improper because the FDIC had never received official

notice of the numerous hearings involving the Bridgeport’s

fate. (FDIC had actual notice of the proposed demolition of

the building in August, 1990, but did not seek judicial

intervention until May, 1991. State ex rel Federal Deposit

Insurance Corporation v. City of Portland, Memorandum

Opinion of Judge Thomas L. Moultrie, September 3, 1991.)

The Circuit Court took FDIC’s petition under advisement

and demolition was delayed. In September, 1991, the

Circuit Court concluded that under the City Code, FDIC

should have received notice of the hearings before the

Hearings Officer. The court therefore issued a writ of

mandamus, enjoining demolition of the Bridgeport until

FDIC was accorded an opportunity for administrative

hearing. Id.

The City forthwith convened a sixth hearing before the

Hearings Officer on October 4, 1991, at which FDIC

appeared to argue its interests, represented by counsel. The

8

parties stipulated as follows, as stated by one of the Building

Bureau officials in attendance at the hearing:

I believe that both parties are willing to stipulate that

the building remains essentially unchanged since the

last hearing. That there has been no reconstruction

or demolition ... with the exception that the plywood

boards have been taken down and replaced with steel

shutters. That, like any other securing system, they

are going to require regular inspection and

maintenance to keep people from breaking in, but the

building is secure at this date. I think the City is

also willing to stipulate that the building is

structurally sound in the sense that its is not in

danger of collapse due to structural weakness at this

point.

Transcript of Oct. 4, 1991 Hearing, contained in City’s

Court of Appeals’ Supplemental Excerpt of Record at 202.

FDIC asked that the building not be demolished, holding

out the hope that Hoeck might yet obtain financing to

complete the Bridgeport project. FDIC suggested, instead,

that the Bridgeport should be "warehoused" under the

appropriate City code provision that allowed warehousing of

vacant structures.‘

‘Portland City Code § 24.55.500 provides as follows:

When the Director [of the Buildings Bureau] determines that a

structure is suitable, due to its historic designation or other

significant features, that owner may be permitted to

warehouse such structure...for a period of up to 30 months.

An extension for one further period of 1 year may be

9

The Hearings Officer concluded that the structure did not

meet the standards for warehousing vacant buildings. Noting

that the building was a "visual blight" on the neighborhood,

a decrepit "monolith towering several stories into the air,"

the Hearings Officer rejected warehousing the building

because "not only are there large holes in the roof, there is

no roof. There are holes in the exterior walls [and] the

glazing is not intact....". Transcript of October 4, 1991

Hearing, City’s Supplemental Excerpt of Record at 246.

The Hearings Officer went on to reaffirm his earlier decision

that the structure should be demolished. Petitioner's

Appendix, F-16 to F-18.

The FDIC did not appeal that decision. Hoeck,

however, sought another Writ of Review, in which he again

challenged the order as violative of his due process rights

and in which he again failed to suggest that the order

constituted a "taking." The Multnomah County Circuit

Court upheld the Hearings Officer’s final order in a

judgment entered July 20, 1992. Petitioner's Appendix, E-3

to E-4. Hoeck appealed that determination to the Oregon

Court of Appeals. The appeal was dismissed January 8,

1993, after Hoeck had failed to file any brief with the Court

of Appeals.

The Bridgeport Hotel was finally demolished by the City

in the summer of 1992, more than three years after the City

filed its first complaint against the structure. Petitioner's

Appendix, C-4. Hoeck filed his action against the City in

permitted by the Director, provided that the condition of the

warehoused structure is determined by inspection to be

satisfactory.

10

federal district court on January 26, 1993.

REASONS WHY THE PETITION SHOULD BE

DENIED

I. The Court should reject the petition because Hoeck

seeks review of a Fifth Amendment issue that was not

before the Ninth Circuit and is not, therefore,

properly before this Court.

Hoeck asks this Court to review the legality of the City’s

demolition of the Bridgeport Hotel under the Takings Clause

of the Fifth Amendment to the United States Constitution.°

Although his petition is divided into several subsections, he

argues in each only that the City’s action constituted a taking

for which compensation must be paid. But Hoeck did not

present the Ninth Circuit with a Fifth Amendment claim.°

* Although Hoeck’s version of the Questions Presented is opaque,

the text of his Petition focuses exclusively on the Fifth Amendment

taking issue. In each separate argument for the grant of certiorari,

Hoeck refers repeatedly to “takings,” “compensation,” or the "Takings

Clause of the Fifth Amendment.” See Petition at pages 9, 10, 11, 12,

13, 14, 15, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27.

® Hoeck’s complaint alleged a deprivation of civil rights under 42

USC § 1983. His first claim for relief alleged that the City’s

dangerous and abandoned building ordinance was applied to Hoeck "in

violation of Hoeck’s rights under the Fifth and Fourteenth

Amendments of the United States Constitution” because it allowed the

“uncompensated demolition” of Hoeck’s building. As his third claim

for relief Hoeck also alleged that the City’s action constituted inverse

11

For this reason, the Ninth Circuit did not render a Fifth

Amendment decision this Court can review.’

Hoeck does not, in fact, contend that the Ninth Circuit

had a Fifth Amendment claim before it. To the contrary, he

admits, as he must, that the Ninth Circuit’s inverse

condemnation "decision ... [was] made under Article I,

section 18 of the Oregon constitution...." Petition for

Certiorari at 13. Having made this admission, however,

condemnation for which compensation was due, but he cited no federal

or state constitutional provisions in support of that claim.

In its motion for summary judgment against Hoeck’s suit, the

City argued, to begin with, that the district court should not assert

jurisdiction over what appeared to be a Fifth Amendment taking claim

in Hoeck’s complaint. The district court had no jurisdiction over that

claim under this Court’s ruling in Williamson County Regional

Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985),

requiring exhaustion of state inverse condemnation remedies prior to

seeking federal relief under the Fifth Amendment. Faced with the

City’s motion, Hoeck conceded the point. Hoeck said that his

complaint did not raise a Fifth Amendment claim and asked the court

to treat his federal civil rights claim as one alleging, instead, a

violation of the Fourteenth Amendment's substantive due process

protections. See discussion by district court, Petitioner's Appendix,

C-7 to C-9.

? The federal question dealt with by the Ninth Circuit opinion was

based on the doctrine of "substantive due process." The Ninth

Circuit’s substantive due process decision was unremarkable. The

Court of Appeals applied a legal standard fully consistent with this

Court’s decisions and those of other Circuit courts. See, Ninth Circuit

opinion citing Albright v. Oliver, _ U.S. __; 114 S.Ct. 804; 127

L.Ed.2d 14 (1994); Village of Euclid v. Ambler Realty Co., 272 U.S.

365 (1926). Petitioner’s Appendix, A-13 to A-15.

12

Hoeck then seeks to bootstrap his way past the jurisdictional

hurdles to raising a federal Fifth Amendment claim at this

late date. According to Hoeck, since the Ninth Circuit cited

federal Fifth Amendment cases in construing the Oregon

constitution, he should be able now to transform a case about

Oregon law into a federal constitutional case. Petition for

Certiorari at 13.

Hoeck’s petition simply does not present a justiciable

federal question. This Court should not grant certiorari

merely to issue an advisory opinion on how lower courts

should use its Fifth Amendment jurisprudence when

interpreting state constitutions.

Il. Even if there were a Fifth Amendment takings

issue in this case, the facts of this case do not

present the issue as Hoeck frames it.

Even if there were a Fifth Amendment takings issue in

this case, it would not be the one Hoeck tries to present.

Hoeck tells the Court that the issue is whether a municipality

can demolish a private building without compensation

because it "is merely unsightly or unoccupied."

As the more complete statement of the case contained in

this brief in opposition reveals, however, the facts of this

case do not present the question Hoeck poses. The City of

Portland demolished Mr. Hoeck’s Bridgeport Hotel only

after it had stood vacate and open to the elements for six

years, after a Hearings Officer had repeatedly found that it

was a Safety hazard, after Hoeck had violated City orders to

secure and renovate the building, after the City repeatedly

delayed the building’s demolition to allow Mr. Hoeck time

to complete work on the structure, and after Oregon courts

13

twice reviewed and upheld the City’s orders.

Finally, before the last of six administrative hearings

granted Hoeck over a three year period, Hoeck secured the

building’s carcass with steel shutters so that it no longer

constituted an immediate threat to public safety. The City

Hearings Officer at that point ordered the demolition of the

building as an “abandoned structure." The demolition

occurred ten months later.

Despite Mr. Hoeck’s suggestion to the contrary, this case

does not present the issue of whether governments have the

power to demolish private buildings solely for aesthetic

reasons. This is not a case about an ugly building. This is

a case about a property owner’s six-year refusal to comply

with municipal codes properly designed to protect the health,

safety and welfare of the community.

14

CONCLUSION

For the foregoing reasons, the City of Portland urges the

Court to deny Hans Hoeck’s petition for certiorari to the

Ninth Circuit Court of Appeals.

Respectfully submitted,

Terence L. Thatcher

Counsel of Record

Office of City Attorney

1220 S.W. Fifth Ave., Rm. 315

Portland, OR 97204

Telephone: (503) 823-4047

Of Attorneys for Respondent

City of Portland

January 12, 1996

APPENDIX

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BRIEF

Suyema Court, U.S

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TE 26 195

No. 95-748 9%

Cire

In The

Supreme Court of the United States

October Term, 1995

HANS HOECK,

Petitioner,

V.

CITY OF PORTLAND,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

DAVID B. SMITH

Counsel of Record

6975 S.W. Sandburg,

Suite 130

Tigard, Oregon 97223

set St 503) 624-9352

Counsel for Petitioner

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED ............. ii

PETITIONER'S REPLY MEMORANDUM ........ l

1. The Federal takings claim was raised at every

level below, but did not become ripe for

decision until the Ninth Circuit affirmed the

grant of Summary Judgment by the District

Spree arta Se rear eae eee 2

The city demolished the Bridgeport Hotel

because it was unsightly and unoccupied, and

not because it had ever been determined to be

a private, common-law nuisance. ...... 6

RTT yt en gp i a ae 10

il

TABLE OF AUTHORITIES CITED

CASES

Bowditch v. Boston, 101 U.S. 16 (1880) ........ 5, 10

First English Evan. Luth. Ch. v. Los Angeles Cty.,

463 U.S. FOC 6 6 Cee eee 5

Hawkins v. City of Lagrande, 315 Or. 56,

OO P.26 SOe Clee) 6 otic eee eee ere 5

Hoeck v. Board of County Commissioners,

No. A9201 - 00164 (Multnomah County

Ci. €., Se 2, See Ve ae 7

Hoeck v. City of Portland, 57 F.3d 781

Cee. 1900) 6 vcs ee bene eee passim

Kaiser Aetna v. United States, 444 U.S 164 (1979) .. 3,5

Keystone Bituminous Coal Ass'n v.

DeBenedictis, 480 U.S. 470 (1987) .............. 3

Loretto v. Teleprompter Manhattan CATV Corp.,

$56 U.5. 419 GSR) cc kt Soo ee eee 4

Lucas v. South Carolina Coastal Council,

505 U.S. » 132 SCA. ZERO CIRM oe ea oes 3,4

Miller v. Schoene, 276 U.S. 272 (1928) .......... 10

Nollan v. California Coastal Commission,

SGP U3. ee CAGED <a ee 5

Penn Central Transp. Co. v. City of New York,

a da len ay « 0 ech kas 3,4

Pumpelly v. Green Bay Co..,

oe Bh AG Fs) ns 5

Shaffer v. City of Winston, 33 Or. App. 391,

I I an vo ov wy alee isin wibs 3

Village of Euclid v. Ambler Realty Co..,

ag a ab eas 3

Williamson Co. Regional Planning v.

Hamilton Bank, 473 U.S. 172 (1985) ............. 6

Yee v. Escondido, 503 U.S. 519 (1992)

No. 95-748

4

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

Sd

HANS HOECK, Petitioner,

v.

CITY OF PORTLAND, Respondent.

¢

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

4

PETITIONER'S REPLY MEMORANDUM

5

Pad

95

The City of Portland, in its opposing brief in No. 94-

748, contends this Court may not review the decision of the

Court of Appeals for the Ninth Circuit to determine if the

city's demolition of the Bridgeport Hotel was an

unconstitutional taking of Mr. Hoeck's private property

without just compensation under the Fifth and Fourteenth

Amendments to the United States Constitution. It bases that

contention on the assertion that Mr. Hoeck's Federal takings

claim was neither raised nor decided below. The city also

contends that this Court should not review the Ninth Circuit's

decision because the hotel was demolished, not because it

was merely unsightly, but because it was found in violation of

city codes intended to protect the health, safety and welfare of

l

2

the city. Both contentions misstate the facts in the record and

misconstrue the applicable law.

1. The Federal takings claim was raised at every level

below, but did not become ripe for decision until the Ninth

Circuit affirmed the grant of Summary Judgment by the

District Court.

The city argues: "The Court should reject the petition

because Hoeck seeks review of a Fifth Amendment issue that

was not before the Ninth Circuit and is not, therefore,

properly before this Court." Brief in Opp. at 10. The city's

argument misconstrues the record below, and disregards the

fact that the city conceded to the Ninth Circuit that Mr. Hoeck

consistently had asserted, and was continuing to assert, a

Federal takings claim. Contrary to the city's assertions in its

brief in opposition, the record of the proceedings below shows

that the Federal takings issue was raised and decided in the

District Court, and was raised and decided again in the Ninth

Circuit.

At oral argument, the Ninth Circuit panel was

concerned that the District Court lacked jurisdiction over Mr.

Hoeck's state takings claim, brought pendent to his

substantive due process claim asserted under the Fourteenth

Amendment. In response to a question by the court, counsel

for the city stated: "[T]he tenor of this case and the way

plaintiff has prosecuted it, has always been on the takings

issue; both the state law takings claim and the federal takings

claim." Transcript at 13, Hoeck v. City of Portland, 57 F.3d

781 (9th Cir. 1995). Having asserted to the Ninth Circuit that

Mr. Hoeck was asserting a Federal takings claim, the city

cannot now argue that claim was not before the Ninth Circuit.

3

At the trial court, Mr. Hoeck raised a Federal takings

clam. When Mr. Hoeck moved for Partial Summary

Judgment in the District Court, he stated, as a basis for his

motion, that "the City's actions constitute a taking of Hoeck's

private property for public use without compensation, in

violation of the Fifth and Fourteenth Amendments to the

Constitution of the United States .. ..". Excerpts of Record,

CR 11 at 5, Hoeck v. City of Portland, 57 F.3d 781 (9th Cir.

1995). The city, when it moved for summary judgment in the

District Court, asserted that "The City's demolition of the

Bridgeport did not constitute a "taking" of Hoeck's property

under the United States . . . Constitution[s].". Defendant's

Memorandum in Support of Motion for Summary Judgement

at 10, Hoeck v. City of Portland, 57 F.3d 781 (9th Cir. 1995)

(citing, inter alia, Village of Euclid v. Ambler Realty Co. , 272

U.S. 365 (1926), Penn Central Transp. Co. v. City of New

York, 438 U.S. 104 (1978), Keystone Bituminous Coal Ass'n

v. DeBenedictis, 480 U.S. 470 (1987), Kaiser Aetna v. United

States, 444 U.S 164 (1979)).

When the District Court rendered its decision on Mr.

Hoeck's pendent state takings claim, it also made a decision

that construed and applied the Fifth Amendment:' "[P)laintiff

has not been deprived of ‘all economically beneficial or

productive use’ of his property." /d. at App. C-10 (citing

Lucas v. South Carolina Coastal Council, 505 U.S. __, 112

S.Ct. 2886, 2893 (1992)). "I further find that defendant's

* The District Court, in making a state constitutional decision, referred

to Shaffer v. City of Winston, 33 Or. App. 391, 394, 576 P.2d 823 (1978), and

concluded “it was reasonable for defendant to conclude that the public interest

would not be served by permitting plaintiff to keep the building on his property in

its perpetually uncompleted state.” Pet. for Cert., App. C-12.

4

actions did not frustrate plaintiff's ‘distinct investment-backed

expectations’ concerning his property." /d. at App. C-12

(citing Penn Central, 438 U.S. at 124).

Thus, under no circumstances can it be said that the

District Court did not make a decision under the Fifth

Amendment, as interpreted by this Court's Fifth Amendment

jurisprudence. It concluded there was no taking under the

Fifth Amendment, and also concluded the city's demolition

did not violate Article I, section 18 of the Oregon

Constitution, and thus was not a state taking.

The Federal takings claim was preserved before the

Ninth Circuit. When Mr. Hoeck filed his brief with the Ninth

Circuit, he again argued that the city's demolition violated the

Fifth Amendment: "The City's Demolition of the Bridgeport

Hotel constitutes a taking of property for which compensation

is due [under] [t]he Takings Clause of the Fifth Amendment

...." Brief for Appellant at 10, Hoeck v. City of Portland,

57 F.3d 781 (9th Cir. 1995). The city again responded

directly to this argument: "The City's demolition of the

Bridgeport did not constitute a "taking" of Hoeck's property

under the United States . . . Constitution[s]." Brief of

Appellee at 11, Hoeck v. City of Portland, 57 F.3d 781 (9th

Cir. 1995).

Like the District Court, the Ninth Circuit based its

conclusions on both state takings law and Fifth Amendment

jurisprudence. The court first concluded that "The

demolition of the Bridgeport Hotel was not a physical taking

for public use." Pet. for Cert., App. A-17 (citing inter alia

Yee v. Escondido, 503 U.S. 519 (1992), Lucas, supra, Loretto

v. Teleprompter Manhattan CATV Corp., 458 U.S. 419

5

(1982), Kaiser Aetna, supra, Nollan v. California Coastal

Commission, 483 U.S. 825 (1987), Pumpelly v. Green Bay

Co., 80 U.S. (13 Wall.) 166 (1871), and Bowditch v. Boston,

101 U.S. 16 (1880))’.

The Ninth Circuit then relied on state court decisions

to conclude that Mr. Hoeck had not suffered a regulatory

taking under the Oregon Constitution. Critical to that

determination, however, was the court's conclusion that "the

regulation has not interfered with Hoeck's reasonable,

investment-backed expectations. Under the law at the time

Hoeck took title, he had no right to use his property as an

abandoned structure." Pet. for Cert., App. A-20 (citing, inter

alia, Lucas, supra). Thus, the Ninth Circuit made a decision

on both the state and Federal takings claims.

Mr. Hoeck preserved that Federal takings claim when

he petitioned the Ninth Circuit for reconsideration and

suggested a rehearing en banc. "The panel's construction of

Article I, section 18 of the Oregon Constitution . . ., to find

no taking of Mr. Hoeck's property by the city, was

inconsistent with the U.S. Supreme Court's construction of

the Fifth Amendment's Takings Clause." Petition for

Rehearing with Suggestion for Rehearing En Banc at 3,

Hoeck v. City of Portland, 57 F.3d 781 (9th Cir. 1995).’

* The Court, in making this holding, also relied on one state case,

Hawkins v. City of LaGrande, 315 Or. 56, 843 P.2d 400 (1992) (physical

occupation by flooding). It appears, at least for purposes of determining whether

the city’s demolition of the Hotel was a permanent physical occupation, the court

assumed that decisions under both the state and Federal constitutions were identical.

> The rejection of this argument by the Ninth Circuit is similar to the

rejection of the argument of the appellant by the California Court of Appeal in First

6

The city's argument also misapprehends the

fundamental principle of ripeness of Federal takings claims set

down by this Court in Williamson Co. Regional Planning v.

Hamilton Bank, 473 U.S. 172 (1985). Mr. Hoeck's Federal

takings claim, even though raised to both the District Court

and the Ninth Circuit, did not become ripe until the Ninth

Circuit had affirmed the District Court's denial of just

compensation sought in Mr. Hoeck pendent state

constitutional takings claim. In Hamilton Bank, Justice

Blackmun, writing for the Court's majority, held that "a

property owner has not suffered a violation of the Just

Compensation Clause until the owner has unsuccessfully

attempted to obtain just compensation through the procedures

provided by the State for obtaining such compensation. . .."

Id. at 196. Thus, it was only when the Ninth Circuit upheld

the District Court's denial of Mr. Hoeck's takings claim under

the Oregon Constitution that his Federal claim became ripe for

adjudication.

2. The city demolished the Bridgeport Hotel because it

was unsightly and unoccupied, and not because it had ever

English Evan. Luth. Ch. v. Los Angeles Cty., 482 U.S. 304 (1987). As in the

instant case, when the First English appellant sought review in this Court, the

appellee argued “that appellant has failed to preserve for review any claim under

federal law.” The appellant had contended that this Court's Fifth Amendment

decisions showed the state's constitutional law was in violation of the Federal

Constitution. This Court concluded:

The Court of Appeal, by applying the state rule . . . to dismiss

appellant's action, rejected on the merits the claim that the

{state] rule violated the United Stat-s Constitution. This

disposition niakes irrelevant for our purposes any deficiencies

in the complaint as to federal issues.

482 U.S. at 313 n.8 (construing jurisdiction under 28 U.S.C. § 1257).

7

been determined to be a private, common-law nuisance.

The city argues that "This is a case about a property

owner's six-year refusal to comply with municipal codes

properly designed to protect the health, safety and welfare of

the community." Brief in Opp. at 13. The city's underlying

contention appears to be that the Hotel was a health and safety

hazard at the time it was demolished. The city's Statement of

the Case in its Brief in Opposition purports to support that

contention. However, that assertion, and its supporting

factual statements, misstates the record in this case.

The city disregards the fact that, on the very day that

demolition of the Hotel commenced, the Circuit Court of the

State of Oregon for Multnomah County, found that "there was

nothing [about the Hotel] in the nature of a public nuisance.

. . . There was nothing . . . that counsel pointed out to the

Court that indicated that there was any finding that the

property was now a danger or health danger or structural

danger of collapse that endangered anyone . . .." Hoeck v.

Board of County Commissioners, No. A9201 - 00164, slip op.

at 15 (Multnomah County Cir. Ct., July 27, 1992).4

Thus the city cannot now contend that, at the time of

demolition, the Bridgeport Hotel was a private, common-law

nuisance. Mr. Hoeck had corrected every health and safety

* This conclusion was rendered by Circuit Judge Roth after he had

granted Mr. Hoeck an additional 120 days to redeem the County's tax lien on the

Hotel. The city proceeded with demolition of the Hotel notwithstanding Judge

Roth's order granting the additional time for redemption. See Pet. for Cert. at 5

n.2. Judge Roth, after stating he believed the city to be “in contempt of court,”

rhetorically asked the city attorney “What value is there for redemption if the

property is destroyed?" Hoeck v. Board of County Commissioners, slip op. at 14.

8

violation identified by the city, and the city indeed agreed that

he had done that. Brief in Opp. at 8. Instead, the city

demolished the structure because it was "abandoned," which

the city defines as a "structure that has been vacant for a

period in excess of 6 months." P.C.C. 24.15.020

(reproduced in Pet. for Cert., App. G-1). The city contends

that Mr. Hoeck's failure was to comply with ordinances

adopted "to protect the health, safety and welfare of the

community," Brief in Opp. at 13.

What the city really means is that it believes it is

constitutionally permissible for it to demolish any building

that has been vacant more than six months, merely because

the building developer has been unable to obtain financing

within a time schedule set arbitrarily by city officials.’ In the

end, it appears that Mr. Hoeck's failure to obtain the requisite

financing when the city believed he should have was the basis

for the city concluding the Hotel was "abandoned."°

Nor can the city conclude that it was acting under the

"police power" to abate an imminent threat to the public

> See Pet. for Cert., App. F-12 (city's Code Hearings Officer gives Mr.

Hoeck from November 24, 1989 until February 10, 1990, to provide “Documentary

evidenve of sufficient committed financing to complete the structure."). The city

also contends it did not proximately cause Mr. Hoeck to lose his financing in the

first place. Brief in Opp. at 3.n.1. The city's contention overlooks the fact that

Mr. Hoeck's lender, State Federal Savings and Loan, was declared insolvent by the

F.S.L.1.C. after the city had suspended Mr. Hoeck's permits and before the city

reissued permits to him on February 3, 1986. Excerpts of Record, CR | at 5,

Hoeck v. City of Portland, 57 F.3rd 781 (9th Cir. 1995).

The city's demand that Mr. Hoeck obtain and document alternative

financing in an arbitrarily short time-frame, when obtaining financing had become

burdensome, placed him at a disadvantage with respect to other developers with

ready access to institutional financing.

ict i amanda aa

9

health and safety. As the city notes, there were "six

administrative hearings granted Hoeck over a three year

period." Jd. The city also catalogs the repeated efforts made

by Mr. Hoeck to make the interim repairs to the structure to

prevent it from being a health and safety hazard. /d. at 5-6.

Over that three year period, Mr. Hoeck's efforts were

successful. The city concedes that, at the end of that period,

the Bridgeport Hotel "no longer constituted a threat to public

safety." Id. Nonetheless, the city demolished the structure.

The city faults Mr. Hoeck for framing the issue in this

case as whether it could demolish a building without

compensation because it "“'is merely unsightly or

unoccupied.'" Brief in Opp. at 12 (quoting Pet. for Cert. at

ii). However, in its Statement of the Case, the city sets forth

that the demolition decision was upheld on the basis of the

building being "'a visual blight’ on the neighborhood, [and]

a decrepit ‘monolith towering several stories into the air

....'" Id. at 9 (citing Pet. for Cert., App. F-16 - F-18).

"This is not a case about an ugly building." Brief in

Opp. at 13. Instead, and in spite of the city's Statement of the

Case, this is a case about whether a building may be

demolished without just compensation when the building has

not been shown to be a heath or safety hazard - a private,

common-law nuisance. The city, in its opposing brief, quotes

from the record that, on October 4, 1991, just months prior

to demolition, the city's Hearings Officer found that Mr.

Hoeck had installed steel shutters and that "'the building is

secure at this date." He added that he thought “the City is

also willing to stipulate that the building is structurally sound.

..'" Brief in Opp. at 8 (citation omitted).

ee

10

The city, by its own representations, makes clear that

the demolition of Mr. Hoeck's building was not necessitated

by any emergency of the sort recognized by this Court in

Bowditch, supra (destruction of houses in path of fire) or

Miller v. Schoene, 276 U.S. 272 (1928) (destruction of trees

to prevent spread of disease). It further acknowledges that the

building was not a health or safety hazard at the time of

demolition. Petitioner respectfully urges this Court to reject

the city's argument that the uncompensated demolition of Mr.

Hoeck's building is permissible merely because the city has an

"abandoned" building ordinance "designed to protect the

health, safety and welfare of the community." Brief in Opp.

at 13.

3. Conclusion.

Based on the foregoing, the Petitioner respectfully

requests that this Court grant the Petition for Certiorari,

vacate the decision of the Ninth Circuit, and remand the

matter back to the United States District Court for the District

of Oregon.

DATED: January 22, 1996.

Respectfully submitted,

*DAVID B. SMITH

*Counsel of Record

6975 S.W. Sandburg, Suite 130

Tigard, Oregon 97223

Telephone: (503) 624-9352

Counsel for Petitioner