We need consider only the state court action. The principal argument that plaintiff makes to avoid res judicata is that the various proceedings that he brought fall between our decision in Dunn v. City of Redmond, 82 Or. App. 36, 727 P.2d 145 (1986), and the Supreme Court's decision that reversed us. 303 Or. 201, 735 P.2d 609 (1987). We held that issues that are, in substance, inverse condemnation claims are subject to exclusive circuit court jurisdiction and do not come within LUBA's jurisdiction.
We now turn to the present case. The state argued in the Court of Appeals that the Board has primary jurisdiction over the "takings" claim under Dunn v. City of Redmond, 303 Or. 201, 735 P.2d 609 (1987). The Court of Appeals rejected that argument for two reasons.
However, the parties' other jurisdictional contentions require more extensive discussion. Both parties rely on Dunn v. City of Redmond, 303 Or. 201, 735 P.2d 609 (1987). The Supreme Court held there that takings claims may be asserted in circuit court inverse condemnation actions, as well as in appeals to the Land Use Board of Appeals (LUBA) from local land use decisions.
RICHARDSON, P. J. This case is before us on remand from the Supreme Court. Dunn v. City of Redmond, 303 Or. 201, 735 P.2d 609 (1987). We described the factual background and the issues in our earlier opinion, 82 Or. App. 36, 38, 727 P.2d 145 (1986):
The fallacy of irrelevance, or ignoratio elenchi, abides in the Dodds' argument. That the Dodds had no incentive to litigate the federal claim is irrelevant to the question of their incentive to litigate the actual issue involved — the value of their land — in the state takings claim being adjudicated at the time. The incentive for the Dodds to litigate the issue before LUBA was great: Were they to succeed, LUBA had the express authority to grant them relief under the Oregon Constitution. Or. Rev. Stat. § 197.835(9)(a)(E); see Dunn v. City of Redmond, 303 Or. 201, 209 (1987). The Dodds argue that LUBA did not afford them a full and fair opportunity to be heard because its procedures were not as formal as those found in court proceedings.
LUBA has subject matter jurisdiction over federal and state constitutional claims. Or.Rev.Stat. § 197.835(7)(a)(E); see Dunn v. City of Redmond, 303 Or. 201, 735 P.2d 609 (1987). The Dodds did not pursue the taking claim under the Fifth Amendment of the United States Constitution at that time, making a specific reservation in their Petition for Review in which they "expressly reserve[d] their right to have their federal claims adjudicated in federal court."
O.R.S. § 197.825(1) provides, and the Oregon Supreme Court has affirmed, that Oregon land use law assigns LUBA “exclusive jurisdiction” to review a “land use decision,” which includes jurisdiction over federal claims. Dunn v. City of Redmond, 303 Or. 201 (1987). Under Oregon law, LUBA must reverse or remand a land use decision in which the local government “[i]mproperly construed the applicable law[.]” O.R.S. § 197.835(9)(a)(D).
325 Or. 185, 935 P.2d 411 (1997). Although LUBA has jurisdiction to decide whether governmental action constitutes a compensable taking, Dunn v. City of Redmond, 303 Or. 201, 207, 735 P.2d 609 (1987), the court in Boise Cascade refused to stay the plaintiffs inverse condemnation action until LUBA had an opportunity to rule, reasoning that the issue presented — whether a taking had occurred — was a constitutional question that fell within an area traditionally adjudicated by courts. Boise Cascade, 325 Or. at 196.
Although LUBA has exclusive jurisdiction to review the adoption of amendments to "land use regulations," not all enactments that come within the definition of that term deal exclusively with land use. Moreover, there is authority that supports the proposition that the jurisdictional lines are not as rigid as the county supposes them to be and that subject matter jurisdiction can be allocated consistently with the reality that the topics and effects of particular local legislation can implicate more than one subject. Under Dunn v. City of Redmond, 303 Or. 201, 735 P.2d 609 (1987), and Springer v. City of Bend, 111 Or. App. 136, 826 P. 1, rev den 313 Or. 354 (1992), a party who asserts that a land use decision and/or regulation gives rise to a regulatory taking may effectively choose to invoke either LUBA's authority to invalidate the land use decision per se or the circuit court's authority to provide an inverse condemnation remedy for the resulting taking. See also Boise Cascade Corp. v. Board of Forestry, 325 Or. 185, 935 P.2d 411 (1997); Nelson v. City of Lake Oswego, 126 Or. App. 416, 869 P.2d 350 (1994).
We agree with the trial court that those claims arise out of a land use decision, and that all of the issues that they present, including the constitutional issues, are subject to LUBA's exclusive jurisdiction. Ackerley Communications, Inc. v. Mult. Co., 72 Or. App. 617, 620, 696 P.2d 1140 (1985), rev dismissed 303 Or. 165, 734 P.2d 885 (1987); see also Dunn v. City of Redmond, 303 Or. 201, 735 P.2d 609 (1987). The trial court denied the motion to dismiss the taking claims "to the extent [they apply] to compensation."