City faces trial in class-action suit.

Byline: Joe Harwood The Register-Guard

A class-action lawsuit led by a local developer against the city of Eugene will go to trial Oct. 7 after two settlement attempts failed.

The lawsuit alleges that city planning staff members, over the course of more than six years, illegally forced hundreds of developers to hand over to the city property easements in return for minor planning approvals. Those property "takings" without compensation violate the federal Constitution and the 1994 U.S. Supreme Court ruling in Dolan vs. City of Tigard, the lawsuit alleges.

Since Eugene businessman John Hammer filed the lawsuit in June 2000, more than 200 property owners have joined the case, which was certified as a class action in 2001.

Jill Gelineau, the Portland attorney representing Hammer and the other class members, said most of the claims range from a few hundred dollars to a few thousand dollars.

The plaintiffs range from homeowners and a few small developers to St. Vincent de Paul, Eugene Bible College and the Eugene School District.

Gelineau said the claims total $1.5 million to $2 million, excluding attorney fees, Gelineau said.

Hammer, a veteran developer with extensive holdings, says he's suing for philosophical reasons. He's seeking $2,401 plus interest for the slivers of land he had to give to the city in return for approval to split into two a 3.3-acre tract at Bailey Hill and Stewart roads.

The question of what demands government can make of a developer has long been a sore point in Oregon. The Supreme Court in the Dolan case said government must show a rational link between conditions it imposes on a developer for approval and the permit the developer is seeking. The court ruled that the burden imposed on the developer must be "roughly proportional" to the impact of the development.

In Dolan, the city of Tigard required that a business, in order to expand, had to dedicate to the city a strip of land for use as a public bicycle path. The court in 1994 sided with the business, telling the city it had to show proportionality.

But government agencies continue to struggle with the issue, and legal fights continue to erupt.

The Hammer case involves property that he bought in 1996, divided several times and then sold. In 1998, Hammer sought permission to split the last three acres he owned at Bailey Hill and Stewart in order to sell half. The city told him that to get the partition, he had to dedicate to the city a 2.2-foot-wide easement along Bailey Hill, a roughly 300-square-foot easement at the corner of Bailey Hill and Stewart, and a block of land totalling 530 square feet along Bailey Hill, according to the lawsuit.

The city wanted the easements for long-range projects, including widening Bailey Hill, improving the intersection and placing electrical equipment.

Hammer donated the easements, but two years later decided to sue, asserting that the city never showed that the land he had to sign over was proportional to the granting of the partition. His attorneys also argue that the partition had no impact on the city's infrastructure and thus the city had no right to demand any easements. If the city wants land for broad public improvements, it should pay the property owners for it, they argue.

The city admits that it never formally calculated whether the easements it required from Hammer were proportional to the impact of the partition. But the city also denies it has violated any laws and denies the easements are disproportional.

When Lane County Circuit Court Judge Jack Billings certified the lawsuit as a class action, the city had to notify scores of property owners who had sought partitions and had to turn over land. Just over 200 came forward and signed onto the case.

Since then, the city has sought to decertify the class action status of the case, arguing that "there is insufficient commonality" between the plaintiffs, said Jens Schmidt, an attorney representing the city.

There are too many different types of property and owner- ship interests as well as unique circumstances with each parcel to lump all into one case, Schmidt said.

Gelineau argues that a class action case is the only way to stop the city's habit of over-reaching and taking small bits of land when an individual asks for a partition.

Class action "is a recognition that there can be a wrong that occurs repeatedly, but the dollar value of the damage is small enough that class members have no economic incentive to bring individual claims," she said.

Schmidt recently filed a motion to compel the plaintiffs to turn over documents - such as notes individuals may have taken during talks with city staff. He also is seeking the court's permission to take depositions from some or all of the plaintiffs.

Gelineau called that "a delay tactic." Schmidt declined to say why he wants depositions, saying he didn't want to give away his strategy.