Neighbors for Notice LLC v. City of Seattle ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEIGHBORS FOR NOTICE LLC, a No. 13-36054
Washington limited liability company,
D.C. No. 2:12-cv-02098-TSZ
Plaintiff - Appellant,
v. MEMORANDUM*
CITY OF SEATTLE, a municipal
corporation; CITY OF SEATTLE
DEPARTMENT OF PLANNING &
DEVELOPMENT; DIANE SIGIMURA,
Director, Department of Planning and
Development,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted April 5, 2016
Seattle, Washington
Before: RAWLINSON, CALLAHAN, and GILMAN,** Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
Appellant Neighbors For Notice LLC (Neighbors) challenges the district
court’s dismissal of its complaint alleging that Appellee City of Seattle Department
of Planning & Development (Department) violated Neighbors’ due process rights
when it approved a lot boundary adjustment without public notice. Neighbors
contends that it has a protected property interest in challenging the Department’s
land-use decision pursuant to Washington’s Land Use Petition Act (LUPA), see
RCW § 36.70C.005, a single-family zoning ordinance limiting minimum lot sizes
to 5,000 square feet (SF 5000), see Seattle Municipal Code § 23.44.010, and the
Washington Subdivision Act. See RCW § 58.17.010.
The district court properly dismissed Neighbors’ LUPA claim on the basis
that LUPA does not provide a cognizable property interest in these circumstances.
“Not every procedural requirement ordained by state law . . . creates a substantive
property interest entitled to constitutional protection.” Shanks v. Dressel, 540 F.3d
1082, 1091 (9th Cir. 2008) (citations omitted). “Rather, only those rules or
understandings that support legitimate claims of entitlement give rise to protected
property interests.” Id. (citation and internal quotation marks omitted). According
to the Washington Supreme Court, LUPA was enacted “to reform the process for
judicial review of land use decisions made by local jurisdictions, by establishing
uniform, expedited appeal procedures and uniform criteria for reviewing such
2
decisions, in order to provide consistent, predictable, and timely judicial review.”
Post v. City of Tacoma, 217 P.3d 1179, 1183 (Wash. 2009) (en banc) (citations and
footnote reference omitted). This procedural-process purpose in no way “creates a
substantive property interest entitled to constitutional protection.” Shanks, 540
F.3d at 1091; see also Durland v. San Juan Cnty., 340 P.3d 191, 202 (Wash. 2014)
(en banc) (concluding that the plaintiff had “no claim [under LUPA] because he
[did] not have a sufficient property interest to require that notice be given to him”)
(footnote reference omitted).1
AFFIRMED.
1
Although the parties focused on Neighbors’ LUPA claim at oral
argument, SF 5000 and the Washington Subdivision Act do not create cognizable
property interests either. See Durland, 340 P.3d at 200 (rejecting a due process
claim because “there is no mandatory language [in the local code] giving rise to a
protected property interest”).
3