TERRY W. EMMERT, DBA Emmert Development Company v. Clackamas County

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY W. EMMERT, DBA Emmert
Development Company,
Plaintiff-Appellant,
v.
CLACKAMAS COUNTY,
Defendant-Appellee.
No. 17-35482
D.C. No. 3:13-cv-01317-HZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted March 4, 2019
Portland, Oregon
Before: GRABER and BERZON, Circuit Judges, and TUNHEIM,** Chief District
Judge.
Terry W. Emmert owns properties in Clackamas County near the site of a
recently developed highway called the Sunrise Corridor. In 2014, Emmert filed a
lawsuit against the County, alleging that the County interfered with his property
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
FILED
MAR 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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rights and defrauded him. Between 2014 and 2017, the district court adjudicated
motions to dismiss on each of Emmert’s five complaints. The court dismissed
Emmert’s first four complaints, with leave to amend at least some of the pleaded
causes of action. When adjudicating Emmert’s fifth complaint, the district court
dismissed Emmert’s only remaining federal claim, a claim under the Fifth
Amendment’s Takings Clause, with prejudice and without leave to amend. The
court then declined to exercise supplemental jurisdiction over Emmert’s remaining
state-law claim, a claim under the Oregon Constitution’s Takings Clause. Emmert
now appeals the district court’s resolution of four of the claims he raised in his
lawsuit.
1. We affirm the dismissal of Emmert’s federal Takings Clause claim.
Under Williamson County Regional Planning Commission v. Hamilton Bank of
Johnson City, a Fifth Amendment regulatory takings claim is not ripe for
adjudication “until the government entity charged with [the regulatory taking] . . .
has reached a final decision” with regard to the property at issue. 473 U.S. 172,
186 (1985). Emmert has not plausibly alleged any action by the County that is ripe
for adjudication as an uncompensated taking.1 For example, Emmert alleges that
1 Under current law, the federal Takings Clause claim fails for the additional
reason that Emmert did not avail himself of Oregon’s state-law mechanism for
seeking just compensation before bringing his federal Takings Clause claim.
Williamson Cty., 473 U.S. at 194-95.

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County “staff explained to . . . interested buyers that the 142nd Ave. East
Properties could not be purchased because a freeway was going to be built through
the middle of the Properties.” But the allegation that County staff provided this
advice does not plausibly allege that the County officially “reached a final
decision” to preclude any private sale of this property. Id.
With respect to one property, Emmert alleges that the County “interfered
with Emmert’s efforts to lease spaces to potential tenants by refusing to grant
potential tenants’ occupancy permits.” The decision to disapprove of some uses
does not constitute a regulatory taking where “the property owners had not sought
approval for any other plan,” because it is not clear whether the County “would
deny approval for all uses that would enable [Emmert] to derive economic benefit
from the property.” Id. at 187. Emmert also alleges that the County “refused to
allow any construction on” this property until Emmert “first complet[ed] a
comprehensive plan.” But, “a challenge to the application of a zoning ordinance
[is] not ripe [where] the property owners ha[ve] not yet submitted a plan for
development of their property.” Id. (citing Agins v. Tiburon, 447 U.S. 255, 260
(1980)). Similarly, here, the claim that the County’s efforts to limit construction
constitutes an uncompensated taking is unripe, because Emmert did not submit a
comprehensive plan for development.
Finally, Emmert alleges that the County indicated that it would buy certain

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properties from him but ultimately decided against purchasing the land. An
indication that the County would buy a property is not a final action by the County.
And a decision by the County not to buy property cannot constitute a regulatory
taking, because it does not prevent Emmet from “deriv[ing] economic benefit from
the property.” Id.
2. Emmert has waived his claim under the Equal Protection Clause. The
district court dismissed this claim from Emmert’s second complaint with leave to
amend. Emmert subsequently repleaded this claim in his third complaint. Emmert
then voluntarily removed the claim from the proposed complaint that he attached
to his motion seeking leave to file a fourth complaint. This decision constituted
waiver. See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en
banc); WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1135-36 (9th Cir. 1997) (en
banc).
3. The district court reasonably declined to exercise supplemental
jurisdiction over the remaining state-law claim when it dismissed his final
complaint, as all federal claims had at that point been dismissed on the pleadings.
See, e.g., Sanford v. Memberworks, Inc., 625 F.3d 550, 561 (9th Cir. 2010).
Before dismissing all the federal claims, the district court dismissed on the merits a
state-law fraud claim. We decline to review that dismissal, as we interpret the
district court’s reasonable decision to decline to exercise supplemental jurisdiction

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once all the federal issues were dismissed as necessarily including the state-law
fraud claim, were it to be revived.
AFFIRMED.

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