Carl A. Clyde, OSB No. 095782

SORENSON, RANSOM, FERGUSON & CLYDE, LLP

133 NW D Street

Grants Pass, OR 97526

Telephone: (541) 476-3883

Fax: (541) 474-4495

E-Mail: cclyde@roguevalleylaw.com

Of Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

 DISTRICT OF OREGON 

MEDFORD DIVISION

DONALD L. OLSON as TRUSTEE OF

THE OLSON LIVING TRUST,

Plaintiff, 

vs. 

CHICAGO TITLE INSURANCE

COMPANY, successor to TICOR TITLE

INSURANCE COMPANY, and the CITY

OF GRANTS PASS

Defendants.

___________________________________

Case No. 1:15-CV-1692-CL

FIRST AMENDED COMPLAINT

(Breach of Contract)

$69,604.39

Demand for Jury Trial

Plaintiff alleges as follows:

1.

Plaintiff is the owner of real properties located at 1711 Softwood Way, Grants

Pass, Oregon 97526, 1115 Catherine Way, Grants Pass, Oregon 97526, 1726 Kids

Way, Grants Pass, Oregon 97526, and 1736 Kids Way, Grants Pass, Oregon 97526.

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SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

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Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 1 of 163
2.

At all material times, Ticor Title Insurance Company was a California

corporation which issues real property title insurance policies. At the time when the

policies were issued, Defendant Chicago Title was a licensed insurance producer, and

transacted insurance in the state of Oregon. At all material times, Defendant Chicago

Title Insurance Company was the successor in interest to Ticor Title Insurance

Company, hereinafter “Defendant Chicago Title”. 

3.

At all material times, the City of Grants Pass was an Oregon political

subdivision as defined by ORS 657.097, hereinafter “Defendant City of Grants Pass”.

4.

On or about May 1, 2008, Defendant Chicago Title issued lender’s Policy No.

26-62822, in connection with the real property at 1711 Softwood Way, and

identifying Plaintiff as the Insured. A copy of the policy is attached hereto as 

“Exhibit 1" and is thereby incorporated. At the time the policy was issued, Plaintiff

was the beneficiary of a first Trust Deed on the property, which is recorded in the

Official Records of Josephine County as Instrument No. 2008-017530. Subsequently,

the grantor of the Trust Deed defaulted in its obligation to Plaintiff, and on or about

May 25, 2011 the real property was conveyed to Plaintiff via a deed in lieu of

foreclosure, which was recorded in the Official Records of Josephine County as

Instrument No. 2011-006124.

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SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

Page 2- FIRST AMENDED COMPLAINT (541) 476-3883 FAX (541) 474-4495

Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 2 of 163
5.

In early June of 2011, Plaintiff discovered that prior to the issuance of the

insurance policy, 1711 Softwood Way was encumbered by System Development

Charges, (hereinafter: “SDC’s”) which were not disclosed in Schedule B of the Policy

as being excepted from coverage. At the same time, Plaintiff discovered that prior to

the issuance of the insurance policy, 1711 Softwood Way was encumbered by

Advanced Financed District Charges, (hereinafter: “AFD’s”), which were not disclosed

on Schedule B of the Policy as an exception to coverage, sufficient to put Plaintiff on

notice of a pre-existing financial obligation.

6.

On or about April 29, 2008, Defendant Chicago Title issued lenders Policy No.

26-62819, in connection with the real property at 1115 Catherine Way, and

identifying Plaintiff as the Insured. A true copy of the policy is attached hereto as

“Exhibit 2" and is thereby incorporated. At the time the policy was issued, Plaintiff

was the beneficiary of a first Trust Deed on the property, which was recorded in the

Official Records of Josephine County as Instrument No. 2008-007139. Subsequently,

the grantor of the Trust Deed defaulted on its obligation to Plaintiff, and on or about

May 25, 2011, the real property was conveyed to Plaintiff via a deed in lieu of

foreclosure, which was recorded in the Official Records of Josephine County as

Instrument No. 2011-006123.

7.

In early June of 2011, Plaintiff became aware that prior to the issuance of the

insurance policy, 1115 Catherine was encumbered by SDC’s, which were not disclosed

SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

Page 3- FIRST AMENDED COMPLAINT (541) 476-3883 FAX (541) 474-4495

Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 3 of 163
in Schedule B of the Policy as being excepted from coverage. At the same time,

Plaintiff discovered that prior to the issuance of the insurance policy, 1115 Catherine

Way was encumbered by AFD’s, which were not disclosed on Schedule B of the Policy

as an exception to coverage, sufficient to put Plaintiff on notice of a pre-existing

financial obligation.

8.

On or about August 30, 2007, Defendant Chicago Title issued lenders Policy

No. 26-60393, in connection with the real property at 1726 Kids way, and identifying

Plaintiff as the Insured as to an undivided 50% interest. A true copy of the policy is

attached hereto as “Exhibit 3" and is thereby incorporated. At the time the policy was

issued, Plaintiff was the beneficiary of a first Trust Deed as to an undivided 50%

interest. The Trust Deed was recorded in the Official Records of Josephine County as

Instrument No. 2007-017096. Subsequently, the grantor of the Trust Deed defaulted

on its obligation to Plaintiff, and on or about May 25, 2011 the real property was

conveyed to Plaintiff alone via a deed in lieu of foreclosure, which was recorded in the

Official Records of Josephine County as Instrument No. 2011-006125.

9.

In early June of 2011, Plaintiff became aware that prior to the issuance of the

insurance policy 1726 Kids Way was encumbered by SDC’s, which were not disclosed

in Schedule B of the Policy as being excepted from coverage. At the same time,

Plaintiff discovered that prior to the issuance of the insurance policy, 1726 Kids Way

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SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

Page 4- FIRST AMENDED COMPLAINT (541) 476-3883 FAX (541) 474-4495

Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 4 of 163
was encumbered by AFD’s, which were not disclosed on Schedule B of the Policy as an

exception to coverage, sufficient to put Plaintiff on notice of a pre-existing financial

obligation.

10.

On or about November 19, 2008, Defendant Chicago Title issued lenders Policy

No. 26-64437, in connection with the real property at 1736 Kids Way, and identifying

Plaintiff as the Insured. A true copy of the policy is attached hereto as “Exhibit 4" and

is thereby incorporated. At the time the policy was issued, Plaintiff was the

beneficiary of a first Trust Deed, recorded in the Official Records of Josephine County

as Instrument No. 2008-017530. Subsequently, the grantor of the Trust Deed

defaulted in its’ obligations to Plaintiff, and on or about May 25, 2011 the real

property was conveyed to Plaintiff via a deed in lieu of foreclosure, which was

recorded in the Official Records of Josephine County as Instrument No. 2011-006126.

11.

In early June of 2011, Plaintiff became aware that prior to the issuance of the

insurance policy 1736 Kids Way was encumbered by SDC’s, which were not disclosed

in Schedule B of the Policy as being excepted from coverage. At the same time,

Plaintiff discovered that prior to the issuance of the insurance policy, 1736 Kids Way

was encumbered by AFD’s, which were not disclosed on Schedule B of the Policy as an

exception to coverage, sufficient to put Plaintiff on notice of a pre-existing financial

obligation.

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SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

Page 5- FIRST AMENDED COMPLAINT (541) 476-3883 FAX (541) 474-4495

Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 5 of 163
12.

The “Covered Risks” section of each policy is identical, and provides that

subject to the exclusions from coverage contained in Schedule B, as of the date of the

policy, Defendant Chicago Title would insure Plaintiff against any loss or damage

sustained or incurred by reason of:

“Any defect in or lien or encumbrance of the Title. This Covered Risk

includes but is not limited to insurance against loss from [T]he lien of

real estate taxes or assessments imposed on the Title by a governmental

authority due or payable, but unpaid.” Covered Risks 2(b).

13.

On or about May 20, 2013, Plaintiff submitted a Proof of Loss to Defendant

Chicago Title as to each and every loss, and has performed all other obligations under

the policies. Defendant Chicago Title or Defendant Chicago Title’s successor has

denied each of Plaintiff’s claims under the policies.

FIRST CLAIM FOR RELIEF

Breach of Contract - Defendant Chicago Title

14.

Plaintiff re-alleges Paragraphs 1 through 13 above.

15.

Plaintiff entered into an insurance contract with Defendant Chicago Title. 

Defendant Chicago Title agreed to insure Plaintiff against any defects caused by any

liens or encumbrances on the title of 1711 Softwood Way, caused by the real estate of

real estate taxes or assessments imposed by a governmental authority due or payable,

but unpaid. Despite this agreement, Defendant Chicago Title refused to pay Plaintiff’s

losses related to a covered risk. 

SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526 Page 6- FIRST AMENDED COMPLAINT (541) 476-3883 FAX (541) 474-4495

Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 6 of 163
16.

Plaintiff is the beneficiary of the insurance contract and has the right to receive

loss payment in these circumstances.

17.

Plaintiff has performed all of Plaintiff’s obligations under the terms of the

Policy. Plaintiff has presented Proofs of Loss to Defendant Chicago Title, and

presented claims under the Policy with Defendant Chicago Title, which have been

denied. Plaintiff has exhausted Plaintiff’s remedies under the Policy, short of

litigation.

18.

Defendant Chicago Title has breached its contract with Plaintiff by failing to

pay Plaintiff’s claims in accordance with the terms of the Policy. Plaintiff has been

damaged in the amount of $15,594.95, or such other amount as may be proven at

trial, because of Defendant Chicago Title’s failure to pay for damages which are

covered under the Policy.

SECOND CLAIM FOR RELIEF

Breach of Contract - Defendant Chicago Title

19.

Plaintiff re-alleges Paragraphs 1 through 18 above.

20.

Plaintiff entered into an insurance contract with Defendant Chicago Title. 

Defendant Chicago Title agreed to insure Plaintiff against any defects caused by liens

or encumbrances on the title of 1115 Catherine Way, caused by the real estate of real

SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

Page 7- FIRST AMENDED COMPLAINT (541) 476-3883 FAX (541) 474-4495

Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 7 of 163
estate taxes or assessments imposed by a governmental authority due or payable, but

unpaid. Despite this agreement, Defendant Chicago Title refused to pay Plaintiff’s

losses related to a covered risk. 

21.

Plaintiff is the beneficiary of the insurance contract and has the right to receive

loss payment in these circumstances.

22.

Plaintiff has performed all of Plaintiff’s obligations under the terms of the

Policy. Plaintiff has presented Proofs of Loss to Defendant Chicago Title, and

presented claims under the Policy with Defendant Chicago Title, which have been

denied. Plaintiff has exhausted Plaintiff’s remedies under the Policy, short of

litigation.

23.

Defendant Chicago Title has breached its contract with Plaintiff by failing to

pay Plaintiff’s claims in accordance with the terms of the Policy. Plaintiff has been

damaged in the amount of $15,604.39, or such other amount as may be proven at

trial, because of Defendant Chicago Title’s failure to pay for damages which are

covered under the Policy.

THIRD CLAIM FOR RELIEF

Breach of Contract - Defendant Chicago Title

24.

Plaintiff re-alleges Paragraphs 1 through 23 above.

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SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

Page 8- FIRST AMENDED COMPLAINT (541) 476-3883 FAX (541) 474-4495

Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 8 of 163
25.

Plaintiff entered into an insurance contract with Defendant Chicago Title. 

Defendant Chicago Title agreed to insure Plaintiff against any defects caused by liens

or encumbrances on the title of 1726 Softwood Way, caused by the real estate of real

estate taxes or assessments imposed by a governmental authority due or payable, but

unpaid. Despite this agreement, Defendant Chicago Title refused to pay Plaintiff’s

losses related to a covered risk. 

26.

Plaintiff is the beneficiary of the insurance contract and has the right to receive

loss payment in these circumstances.

27.

Plaintiff has performed all of Plaintiff’s obligations under the terms of the

Policy. Plaintiff has presented Proofs of Loss to Defendant Chicago Title, and

presented claims under the Policy with Defendant Chicago Title, which have been

denied. Plaintiff has exhausted Plaintiff’s remedies under the Policy, short of

litigation.

28.

Defendant Chicago Title has breached its contract with Plaintiff by failing to

pay Plaintiff’s claims in accordance with the terms of the Policy. Plaintiff has been

damaged in the amount of $19,103.03, or such other amount as may be proven at

trial, because of Defendant Chicago Title’s failure to pay for damages which are

covered under the Policy.

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SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

Page 9- FIRST AMENDED COMPLAINT (541) 476-3883 FAX (541) 474-4495

Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 9 of 163
FOURTH CLAIM FOR RELIEF

Breach of Contract - Defendant Chicago Title

29.

Plaintiff re-alleges Paragraphs 1 through 28 above.

30.

Plaintiff entered into an insurance contract with Defendant Chicago Title. 

Defendant Chicago Title agreed to insure Plaintiff against any defects caused by liens

or encumbrances on the title of 1736 Softwood Way, caused by the real estate of real

estate taxes or assessments imposed by a governmental authority due or payable, but

unpaid. Despite this agreement, Defendant Chicago Title refused to pay Plaintiff’s

losses related to a covered risk. 

31.

Plaintiff is the beneficiary of the insurance contract and has the right to receive

loss payment in these circumstances.

32.

Plaintiff has performed all of Plaintiff’s obligations under the terms of the

Policy. Plaintiff has presented Proofs of Loss to Defendant Chicago Title, and

presented claims under the Policy with Defendant Chicago Title, which have been

denied. Plaintiff has exhausted Plaintiff’s remedies under the Policy, short of

litigation.

33.

Defendant Chicago Title has breached its contract with Plaintiff by failing to

pay Plaintiff’s claims in accordance with the terms of the Policy. Plaintiff has been

SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

Page 10- FIRST AMENDED COMPLAINT (541) 476-3883 FAX (541) 474-4495

Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 10 of 163
damaged in the amount of $19,103.00, or such other amount as may be proven at

trial, because of Defendant Chicago Title’s failure to pay for damages which are

covered under the Policy.

FIFTH CLAIM FOR RELIEF

ATTORNEY FEES

34.

Plaintiff realleges paragraphs 1 through 13 above.

35.

Because settlement was not made within six (6) months of Defendant Chicago

Title receiving proof of the loss, Plaintiff is entitled to recover attorney fees, pursuant

to ORS 742.061, as to each of Plaintiff’s claims for relief.

SIXTH CLAIM FOR RELIEF

Count One: Declaratory Judgment

36.

Plaintiff realleges paragraphs 1 through 13 above.

37.

In the alternative to Plaintiff’s Claims for Relief, 1 through 5, Plaintiff seeks a

declaration that the SDC’s are not continuing liens secured by the properties as

claimed by Defendant City of Grants Pass. On or about July 22, 1991, Defendant City

of Grants Pass enacted Ordinance No. 4708, which allowed Defendant City of Grants

Pass to establish SDC’s, subject to the provisions of the City of Grants Pass Municipal

Code, hereinafter “the Code”, Chapter 8.09. A copy of the original 1991 Ordinance is

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SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

Page 11- FIRST AMENDED COMPLAINT (541) 476-3883 FAX (541) 474-4495

Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 11 of 163
attached as Exhibit “5”. The Code was later amended and re-numbered in 2002, and

amended again in 2003, 2005, 2006 and 2015. A copy of the current 2015 City of

Grants Pass Municipal Code is attached hereto as Exhibit “6”.

38.

According to the Code, the purpose of the SDC’s was to pass the costs of

developing and connecting properties to the City’s utility systems to the owners of

those properties when they connected to the systems. CGPMC 3.10.020. The SDC’s

are payable upon, and as a condition of, issuance of building permits or connection

authorizations. CGPMC 3.10.070. And those who apply for building permits are

obligated to pay the charges in full when they apply for the permit, and it is unlawful

for anyone to continue construction or development of the property until the charge

has been paid. CGPMC 3.10.070. And the City Manager shall not allow any

connection to the water or wastewater system until all charges described in 3.10.070

of the Code, together will all other applicable fees and charges have been paid in full. 

CGPMC 3.10.070(c).

39.

The Code specifically sets forth enforcement options where an SDC has not

been paid, but nowhere does the Code, state that an unpaid SDC is treated as a

continuing lien on the property. Rather, the Code itself specifically distinguishes the

difference between the SDC being treated as a “tax” versus a “fee for use”. 

40.

The SDC’s function as a “fee for use” of utilities and not “taxes” or

“proportional assessments” because they are not applied against all affected properties

SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

Page 12- FIRST AMENDED COMPLAINT (541) 476-3883 FAX (541) 474-4495

Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 12 of 163
equally. Rather, the collection of the SDCs are user charges specifically tied to the

issuance of a building or development permit and are due and payable in full as a

condition of the permit. If a property owner never applies for connection to the utility

system, then no charge would ever come due. And if a property owner does apply for

connection to the system, the SDC’s charges are immediately due and payable, or if

they are not paid in full, no permit is to issue. Defendant City of Grants Pass contends

that the SDC charges constitute a continuing lien against Plaintiff’s property, Plaintiff

contends otherwise. Plaintiff requests that the Court declare that the SDC charges are

not a continuing lien and declaring them void, fully satisfied and estopping Defendant

City of Grants Pass from claiming any right or interest in the SDC’s, as against

Plaintiff’s real property.

Count Two: Declaratory Judgment

41.

In the alternative to Plaintiff’s Claims for Relief 1 through 5 and Plaintiff’s

Claim for Relief 6, Count One, even if the SDCs are liens held by Defendant City of

Grants Pass, Plaintiff requests that the Court declare that the SCDs are void because

Defendant City of Grants Pass failed to establish constructive notice for future owners

of the real properties by either: 1) recording each SDC claim in the Official Records of

Josephine County as required by ORS 93.643(1); or 2) maintaining a searchable

electronic database as required by ORS 93.643(2)(b). 

42.

Plaintiff is therefore a bona fide purchaser who acquired the property in good

faith, in an arms length transaction and for fair market value and adequate

SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

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Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 13 of 163
consideration. Plaintiff has no plain, speedy or adequate relief at law. Plaintiff

contends that he is a bona fide purchaser who purchased the property without notice

and is not obligated to pay for the SDC charges. Based on information and belief,

Defendant City of Grants Pass contends otherwise. Plaintiff requests that the court

declare that Plaintiff is a bona fide purchaser and is not obligated to pay for the SDC

charges and declaring them void, fully satisfied and estopping Defendant City of

Grants Pass from claiming any right or interest in the SDC’s, as against Plaintiff’s real

property.

SEVENTH CLAIM FOR RELIEF

Declaratory Judgment

43.

Plaintiff realleges paragraphs 1 through 13 as above.

44.

In the alternative to Plaintiff’s Claims for Relief 1 through 5, Plaintiff seeks a

declaration thatthe AFD’s are not continuing liens secured by the property as claimed

by Defendant City of Grants Pass. 

45.

On or about August 24, 2002, Defendant City of Grants Pass enacted Ordinance

No. 5149, amending the advanced financed district for “PUBLIC WATER, STORM

DRAIN AND STREET IMPROVEMENTS IN “N” STREET.” The amended Ordinance

allowed Defendant City of Grants Pass to establish AFD’s for the purpose of collecting

reimbursement of the prorated share of the cost of installation of certain

improvements. A copy of Ordinance No. 5149 is attached hereto as Exhibit “7". 

SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

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Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 14 of 163
46.

Based upon information and belief, Defendant City of Grants Pass claims that

AFD charges resulting from the enactment of the Ordinance functions as a lien against

the benefitting property.

47.

To the contrary, in no place do the terms of Ordinance No. 5149 indicate that

the AFD’s constitute a continuing lien on the property. The AFD’s are a “fee for use” of

utilities and improvements, not “taxes” or “proportional assessments,” because they

are not applied against all affected properties equally. Furthermore, the Ordinance

fails to describe when the AFD charges are due and owing, or to prescribe a specific

rate of interest on any debt accruing thereunder. Defendant City of Grants Pass

contends that the AFD’s constitute a continuing lien against Plaintiff’s property,

Plaintiff contends otherwise. Plaintiff requests that the Court declare that the AFD’s

are not a continuing lien.

EIGHT CLAIM FOR RELIEF

Declaratory Judgment

48.

Plaintiff realleges paragraphs 1 through 13 as above.

49.

On or about February 26, 2004, Defendant City of Grants Pass enacted

Ordinance No. 5215, which allowed Defendant City of Grants Pass to establish AFD’s

for water improvements. A copy of Ordinance No. 5215 is attached hereto as Exhibit

“8".

SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

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Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 15 of 163
50.

On or about February 26, 2004, Defendant City of Grants Pass enacted

Ordinance No. 5217, which allowed Defendant City of Grants Pass to establish AFD’s

for storm improvements. A copy of Ordinance No. 5217 is attached hereto as Exhibit

“9".

 51.

On or about February 26, 2004, Defendant City of Grants Pass enacted

Ordinance No. 5218, which allowed Defendant City of Grants Pass to establish AFD’s

for landscaping improvements. A copy of Ordinance No. 5218 is attached hereto as

Exhibit “10".

52.

 Based upon information and belief, Defendant City of Grants Pass claims that

charges resulting from the enactment of each of the Ordinances functions as a

continuing lien against the property.

53.

To the contrary, nowhere do any of the AFD Ordinances indicate that they

constitute a continuing lien on the property. Rather, each of the Ordinances indicates

that the AFD’s are user charges specifically tied to the issuance of a building permit, a

development permit or connection to the public water system and are due and payable

in full as a condition of either the issuance of the permit or connection to the system.

As such, the AFD’s function as a “fee for use” of utilities and not “taxes” or

“proportional assessments,” because they are not applied against all affected

properties equally.

SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526 Page 16- FIRST AMENDED COMPLAINT (541) 476-3883 FAX (541) 474-4495

Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 16 of 163
54.

Furthermore, based on information and belief, Defendant City of Grants Pass

claims to have authority to charge Plaintiff 8% simple interest per annum for any

debts owed on the AFD’s. However, section 4 of each of these Ordinances provides

that repayment from the benefitted property “shall include annual simple interest at a

rate of 4% from the date of adoption for this ordinance.” Plaintiff seeks a declaration

that the City of Grants Pass is charging interest in excess of the rate permitted by the

ordinance. 

55.

Plaintiff has no plain, speedy or adequate relief at law.

WHEREFORE, Plaintiffs request the following relief:

1. On Plaintiff’s First Claim for Relief, judgment against Defendant Chicago

Title in the amount of $15,594.95, or such other amount as may be proven at trial;

2. On Plaintiff’s Second Claim for Relief, judgment against Defendant

Chicago Title in the amount of $15,604.39 or such other amount as may be proven at

trial;

3. On Plaintiff’s Third Claim for Relief, judgment against Defendant

Chicago Title in the amount of $19,103.03 or such other amount as may be proven at

trial;

4. On Plaintiff’s Fourth Claim for Relief, judgment against Defendant

Chicago Title in the amount of $19,103.00 or such other amount as may be proven at

trial;

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SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

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Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 17 of 163
5. On Plaintiff’s Fifth Claim for Relief, for attorney fees on each prior Claim

for Relief, pursuant to ORS 742.061, costs and disbursements; and

6. In the alternative to all aforementioned Claims for Relief, on Plaintiff’s

Sixth Claim for a relief, Count One, Plaintiff prays for a judgment declaring that the

SDC’s are not liens on the Property, declaring them void, fully satisfied and

estopping Defendant City of Grants Pass from claiming any right or interest in the

SDC’s, as against Plaintiff’s real property.

7. In the alternative to all aforementioned Claims for Relief, on Plaintiff’s

Sixth Claim for Relief, Count Two, Plaintiff prays for a judgment declaring that the

SDC’s liens are void, because Defendant City of Grants Pass failed to either 1) record

the SDC lien claim in the Official Records of Josephine County as required by ORS

93.643(1); or 2) failed to maintain a searchable electronic database as required by

ORS 93.643(2)(b) for the SDC liens to become public record and provide constructive

notice, and declaring Plaintiff to be a bona fide purchaser in good faith, pursuant to

ORS Chapter 93.

8. In the alternative to all aforementioned Claims for Relief, on Plaintiff’s

Seventh Claim for Relief, Plaintiff prays for a judgment declaring that Ordinance No.

5149 does not create a continuing lien against Plaintiff’s real property, and if any debt

does exist, there is no interest due and owing the debt, as no rate of interest was

ascribed to such debt in the Ordinance.

9. In the alternative to all aforementioned Claims for Relief, on Plaintiff’s

Eighth Claim for Relief, Plaintiff prays for a judgment declaring that Ordinance Nos. 

5215, 5217 and 5218 do not create a continuing liens against Plaintiff’s real property,

SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

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Case 1:15-cv-01692-CL Document 27 Filed 04/13/16 Page 18 of 163
and if any debt does exist, it is limited to 4% simple interest per annum as prescribed

by the terms of each Ordinance.

10. For such other relief as may be adjudged to be just and equitable.

Dated this 12th day of April, 2016.

SORENSON, RANSOM, FERGUSON & CLYDE, LLP

/s/ Carl A. Clyde 

Carl A. Clyde

OSB No. 095782

cclyde@roguevalleylaw.com

Of Attorneys for Plaintiff

SORENSON, RANSOM & FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

Page 19- FIRST AMENDED COMPLAINT (541) 476-3883 FAX (541) 474-4495

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CERTIFICATE OF SERVICE

I hereby certify that on this 13th day of April, 2016, I served the foregoing FIRST

AMENDED COMPLAINT, by mailing to said parties a true copy thereof, certified by me as

such, contained in a sealed envelope, with postage paid, addressed to said party at the

last known address and deposited in the post office on said day at Grants Pass, Oregon.

N/A

Pursuant to Fed. R. Civ. P. 34, 33, LR 34-1(a), LR 33-1(a) and LR 5-10(b), I also

certify that I concurrently served an electronic copy thereof, via ECF/e-mail, addressed to

said parties at their last known e-mails, on said day at Grants Pass, Oregon:

Matthew R. Cleverley

701 - 5th Avenue, Suite 2710

Seattle, WA 98104

matthew.cleverley@fnf.com

SORENSON, RANSOM, FERGUSON & CLYDE, LLP

/s/ Carl A. Clyde 

Carl A. Clyde

OSB No. 095782

cclyde@roguevalleylaw.com

Of Attorneys for Plaintiff

SORENSON, RANSOM, FERGUSON & CLYDE, LLP

ATTORNEYS AT LAW

133 NW ‘D’ STREET

GRANTS PASS, OR 97526

CERTIFICATE OF SERVICE (541) 476-3883 FAX (541) 474-4495

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