Maureen Richter v. City of Des Moines ( 2013 )


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  •                                                                                        FILED
    NOT FOR PUBLICATION                                      AUG 19 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                                U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MAUREEN RICHTER,                                      No. 12-35370
    Plaintiff-Appellant,                   D.C.2:10-cv-00461-MJP
    v.                                                  AMENDED
    MEMORANDUM*
    CITY OF DES MOINES, a municipal
    corporation,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Western District of Washington
    Marsha Pechman, District Judge, Presiding
    Argued and Submitted June 6, 2013
    Seattle, Washington
    Before: GILMAN,** McKEOWN, and IKUTA, Circuit Judges.
    Maureen Richter appeals from the district court’s order granting summary
    judgment in favor of the City of Des Moines (“the City”). We have jurisdiction under
    *
    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.
    
    28 U.S.C. § 1291
    .
    Richter applied for permits to construct a trail that would connect her home on
    the Puget Sound bluff to the beachfront below. Her trail application was denied
    several times before the City finally gave its approval. She brought suit under 
    42 U.S.C. § 1983
    , alleging that the City’s internal review by the City Hearing Examiner,
    its initial denials of her application, and its disparate treatment of her application
    violated her procedural due process, substantive due process, and equal protection
    rights.
    We will assume without deciding that Richter has a constitutionally protected
    property interest based on her ownership and use of real estate. See Wedges/Ledges
    of Calif. v. City of Phoenix, 
    24 F.3d 56
    , 62 (9th Cir. 1994) (noting that a plaintiff
    alleging a deprivation with regard to her property rights must establish that she has a
    property interest subject to constitutional protection in order to prevail). Turning first
    to Richter’s procedural due process claim, her basic argument is that she was deprived
    of her constitutional right to a fair and impartial hearing as a matter of law because
    Section 18.94.113 of the Des Moines Municipal Code requires the Hearing Examiner
    to give deference to the City’s initial permit decision. This argument is, at base, an
    argument that Section 18.94.113 is facially unconstitutional. But Richter never
    squarely presented this claim to either the state court or the district court, and neither
    -2-
    the original nor the amended complaint identified the ordinance that she is now
    challenging.
    A court should proceed with reluctance “to set aside legislation as
    unconstitutional on grounds not properly presented.” McGoldrick v. Compagnie
    Generale Transatlantique, 
    309 U.S. 430
    , 434 (1940). In the present case, Richter had
    multiple opportunities to properly present her claim of facial unconstitutionality and
    failed to do so. She has therefore forfeited this claim. And even if her due process
    claim is, as she claims, a damages claim and was not forfeited, there was no
    constitutional infirmity in the process she received because the general due process
    factors set forth in Mathews v. Eldridge, 
    424 U.S. 319
    , 335 (1976), taken together,
    favor the City. The district court therefore did not err in dismissing Richter’s claim
    of a procedural due process violation.
    We also find no error in the district court’s dismissal of Richter’s substantive
    due process claim. She contends that the City allowed its displeasure with her initial
    unauthorized trail construction to taint its review of her subsequent application for
    permits, and that the City failed to consider the reports of her engineers on the trail’s
    design. But Richter must meet an “exceedingly high burden,” see Shanks v. Dressel,
    
    540 F.3d 1082
    , 1088 (9th Cir. 2008) (internal quotation marks omitted), of showing
    -3-
    that the City’s actions “lacked a rational relationship to a government interest,” see N.
    Pacifica LLC v. City of Pacifica, 
    526 F.3d 478
    , 485 (9th Cir. 2008).
    Even assuming without deciding that the City harbored ill feelings toward
    Richter for having commenced constructing her trail without the required permits and
    that it failed to give proper attention to her engineers’ reports, this sort of conduct is
    not the broadly irrational kind previously found to have violated substantive due
    process. Cf. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 
    920 F.2d 1496
    ,
    1508 (9th Cir. 1990) (reversing summary judgment for the city and remanding for a
    trial on the merits of a substantive due process claim where the city council initially
    approved a proposed oceanfront development but later “abruptly changed course and
    rejected the plan, giving only broad conclusory reasons”); Bateson v. Geisse, 
    857 F.2d 1300
    , 1303 (9th Cir. 1988) (finding a substantive due process violation where a
    developer had satisfied all the conditions to receive a building permit when the city
    council arbitrarily initiated a zoning change that prohibited the proposed project and
    caused the permit to be denied).
    Here, the City denied Richter’s trail permits because she failed to comply with
    applicable state and local construction and environmental codes. Such compliance is
    unquestionably a legitimate government interest, and the City was justified in ensuring
    that the proposed work adequately protected an environmentally sensitive area. The
    -4-
    district court therefore did not err in dismissing Richter’s substantive due process
    claim.
    Finally, with respect to Richter’s equal protection “class of one” claim, Richter
    has failed to show that the City intentionally, and without a rational basis, treated her
    differently from others similarly situated. See Vill. of Willowbrook v. Olech, 
    528 U.S. 562
    , 564 (2000) (per curiam). Richter’s claim is based on the allegations that a
    contemporaneous trail proposal submitted by the City’s Department of Parks and
    Recreation in a completely different area was approved even though the department
    did not submit reports assessing the stability of the slope and that the City treated that
    project more favorably than hers by approving the proposal in only five months.
    But Richter failed to show that slope-stability reports were required for the type
    and slope of the trail proposed by the Parks Department. Moreover, the Parks
    Department, unlike Richter, submitted all components of the required application in
    a timely manner, enabling speedy review. Because Richter and the Parks Department
    were not similarly situated with regard to their respective trail applications, the district
    court did not err in dismissing Richter’s equal protection claim.
    AFFIRMED.
    -5-
    FILED
    Richter v. City of Des Moines, 12-35370                                          AUG 19 2013
    MOLLY C. DWYER, CLERK
    Ikuta, J., dissenting in part:                                                 U.S. COURT OF APPEALS
    The Fourteenth Amendment to the Constitution proclaims that no State shall
    “deprive any person of life, liberty, or property, without due process of law.” It is
    well-established that “[t]he right of [an owner] to devote [her] land to any
    legitimate use is properly within the protection of the Constitution,” Harris v. Cnty.
    of Riverside, 
    904 F.2d 497
    , 503 (9th Cir. 1990) (quoting Washington ex rel. Seattle
    Title Trust Co. v. Roberge, 
    278 U.S. 116
    , 121 (1928)), and that the government
    cannot deprive an owner of the “use and enjoyment” of her land without due
    process. 
    Id.
     But here the majority will only “assume without deciding that Richter
    has a constitutionally protected property interest” based on her ownership of her
    real property. Maj. op. at 2. I disagree with the majority’s hesitance on this point,
    because it is clear that the Fourteenth Amendment protects Richter’s interests in
    real property.
    The majority’s doubt that Richter has a claim for unconstitutional
    deprivation of the use of her property reflects the City’s insistence that Richter’s
    claim must be analyzed as the deprivation of a government benefit, namely, the
    right to obtain a land-use permit. See Bd. of Regents v. Roth, 
    408 U.S. 564
    , 577
    (1972) (establishing test for determining whether there is a constitutionally-
    1
    protected property interest in government benefits)); see also maj. op. at 2 (citing
    Wedges/Ledges of Cal. v. City of Phoenix, 
    24 F.3d 56
    , 62 (9th Cir. 1994) (applying
    Roth test)). Based on its interpretation of Roth, the City assumes that only the
    government can create property interests, and so a court is limited to determining
    whether Richter has a “legitimate claim of entitlement” to a benefit “as created and
    defined” by state law. Bateson v. Geisse, 
    857 F.2d 1300
    , 1305 (9th Cir. 1988).
    But Roth “stands not for a theory of plenary state control over the definition and
    recognition” of constitutionally-protected property interests, “but for a much more
    modest proposition”: that state law “might serve to elevate certain nontraditional
    forms of property,” like welfare, permits, and licenses, to “constitutional status.”
    Schneider v. Cal. Dep’t of Corr., 
    151 F.3d 1194
    , 1200 (9th Cir. 1998). Expanding
    Roth beyond the limited context of government benefits, and into the “traditional”
    realm of core property interests that the state cannot redefine at will, is a
    constitutionally untenable approach to assessing property rights. 
    Id.
     (quoting
    Loretto v. Teleprompter Manhattan CATV Corp., 
    458 U.S. 419
    , 439 (1982)). If
    Roth were so broadly applicable, “States could unilaterally dictate the content
    of—indeed, altogether opt out of—both the Takings Clause and the Due Process
    Clause simply by statutorily recharacterizing traditional property-law concepts”
    such as the right to use and enjoy one’s own real property. Id. at 1201.
    2
    Here, Richter claims that her due process rights were violated because City
    staff (rather than a neutral adjudicator) denied Richter’s request for permission to
    proceed with a development project on her property in the first instance, and the
    hearing examiner adjudicating Richter’s appeal of this denial was required by law
    to give the staff decision “a presumption of correctness.” 1 This claim should
    survive summary judgment, because the undisputed facts show that Richter never
    had a neutral adjudicator determine whether she had met the City’s requirements
    for proceeding with the proposed use of her land. On its face, this procedure raises
    grave due process concerns. As the Supreme Court has explained, an individual
    may not be deprived of protected property rights without “impartial adjudication in
    the first instance.” Concrete Pipe and Prods. of Cal., Inc. v. Constr. Laborers
    Pension Trust for S. Cal., 
    508 U.S. 602
    , 626 (1993).2
    1
    Richter raised this same argument in her amended complaint, Dist. Ct. Dkt.
    26 at 11, and so the majority errs in holding that she forfeited this claim, Maj. op.
    at 3.
    2
    Indeed, even if the test applicable to deprivations of government benefits
    without due process, see Mathews v. Eldridge, 
    424 U.S. 319
    , 335 (1976), were
    applicable in this context, Richter has raised a genuine issue of material fact that
    she was deprived of due process: Richter has a substantial property interest at
    stake, the risk of erroneous deprivation is great (given the highly-deferential
    standard the hearing examiner must apply), and the administrative burdens of
    curing the problem are low, since the City need only provide a neutral hearing in
    the first instance.
    3
    Because Richter has raised a substantial legal question as to whether the City
    violated her procedural due process rights, and the City has not established that it is
    entitled to judgment as a matter of law, I would reverse the district court’s grant of
    summary judgment as to this claim.
    4