Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted May 4, 1995.
Appeal from the United States District Court for the District of Oregon, No. CV-86-06592-MRH; Michael R. Hogan, District Judge, Presiding.
D.Or. [Appeal After Remand from 933 F.2d 677].
AFFIRMED.
Before: BROWNING, REAVLEY, and NORRIS, Circuit Judges.
The Honorable Thomas M. Reavley, Circuit Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation.
MEMORANDUM
Because the Commissioners could have reasonably believed that their action did not constitute a taking, they are entitled to qualified immunity.
In Haas & Co. v. City & County of San Francisco, 605 F.2d 1117 (9th Cir. 1979), we found that a 95% reduction in the value of a landowner's property did not itself constitute a taking. See id. at 1120-21; see also Hadacheck v. Sebastian, 239 U.S. 394, 405 (1915) (finding no taking when value was reduced from $800,000 to $60,000). Although Haas does not compel the conclusion that the Commissioners' action here -- which reduced Zamsky's land value by about 94.6% -- was not a taking, it does indicate that the Commissioners could reasonably believe that the diminution of value in Zamsky's property was not itself enough to constitute a taking.
The record also establishes that the LCDC's 1983 Continuance Order could not have created a reasonable investment-backed expectation of approval. The Order directed the county either to redesignate lands zoned PUD or to establish a valid exception. Furthermore, the LCDC had previously acquiesced in the county's decision not to consider Goal 14 until after Zamsky had proposed a specific development plan, which he had not done at the time of the 1983 Order. Therefore, Zamsky knew the LCDC had not considered Goal 14 at the time of this order and that the LCDC had concerns about whether his development plan would comply with that goal.
Finally, because the LCDC had no legal duty to intervene in the two court proceedings relating to Klamath County's approval of Zamsky's master development plan, its failure to do so did not create the requisite reasonable expectation.
Although Zamsky might have believed the higher density development plan would be approved, the contention that a property owner "may establish a 'taking' simply by showing that [he has] been denied the ability to exploit a property interest that [he] heretofore had believed was available for development is quite simply untenable." Penn Central Transp. Co. v. New York City, 438 U.S. 104, 130 (1978).
AFFIRMED.
FN** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.