Appeals court affirms case in Bend’s favor

Upholds jury’s decision from 2011 in land development case

By Shelby R. King / The Bulletin

Published Mar 11, 2014 at 01:15AM

The Oregon Court of Appeals in February affirmed a Deschutes County jury’s 2011 verdict in a case in which a local man had his land development plans halted by city planning officials.

Scott Dahlen bought property in 2003 between Simpson and Troon avenues on the east side of Mt. Washington Drive in Bend, intending to develop a 17-lot residential subdivision on the property. The city refused to issue permits, saying the property was a “landscape buffer” and could not be developed. The city took the position that the original master plan for Broken Top, created in 1991, designated the property as a buffer area.

Dahlen took the case to the state Land Use Board of Appeals and in 2008 and had the city’s decision reversed. LUBA reversed the decision based on an updated 1992 master plan, which made no reference to the property as a landscape buffer, establishing it as a buildable tax lot.

By that time, new home construction in the area had ground to a halt, and Dahlen went after the city for $2.1 million in damages in a civil lawsuit initially filed in 2007 in Deschutes County Circuit Court, claiming the city’s roadblocks had prevented him from developing the land when he could have turned a hefty profit.

Dahlen sued the city of Bend for “temporary unconstitutional taking of his property,” according to court records.

The case went to trial, and in April 2011 a 12-person jury ruled the city was not responsible for damages because Dahlen’s name was not on the title to the land during the time he was trying to develop it. Though he purchased the land, he had the title held first in his wife’s name and then in a family friend’s name.

Dahlen, whose attorney did not return a call for comment, alleged that an August 2004 cease-and-desist letter issued by the city thwarted his development plans and amounted to “temporary taking.” The jury found that because Dahlen’s name was not on the title during that time, he was not legally able to sue for damages. The Oregon Court of Appeals in February upheld the jury’s verdict and issued an affirmation without opinion.

Bend city attorney Mary Winters said Dahlen could now apply to have his case heard by the Oregon Supreme Court, but she said it would be “unusual” for the highest court to hear a case like this one.

— Reporter: 541-383-0376, sking@bendbulletin.com