Metropolitan News-Enterprise


Thursday, August 28, 2008


Page 1


Ninth Circuit Panel Rejects Bid to Protect Historic District


By SHERRI M. OKAMOTO, Staff Writer


The Fifth Amendment’s Takings Clause does not categorically preclude due process challenges to impermissible governmental actions that deprive a person of real property,  the Ninth U.S. Circuit Court of Appeals held yesterday.

However, the three-judge panel affirmed a district judge’s dismissal of a suit by various property owners and community groups who sued the city of Spokane, Wash. to enforce zoning ordinances to protect the aesthetics and ambiance of a historical district. The panel said the complaint failed to state a viable substantive due process claim.

The Mission Avenue Historic District is a collection of Queen Anne, Four Square, Craftsman and bungalow-style houses located just north of Gonzaga University in Spokane.

In March 2005, the city granted Vincent and Janet Dressel—developers who remodel and convert private homes into student residences—a building permit to construct a duplex addition to 428 East Mission, a clapboard-sided, Four Square house located within the District and inventoried on the District’s nomination for the National Register of Historic Places.

Certificate of Appropriateness

The Spokane Municipal Code requires owners to obtain a certificate of appropriateness for work that affects the exterior of properties and new construction within a historic district. The code also requires that developers obtain a special permit certifying that any construction to structures or properties listed in the National Register of Historic Places is “of a character which is consistent with the defining characteristics of the historic district.”

The Dressels demolished the house’s garage and erected an extension to the original house without obtaining the special permit or certificate required by the code, and the city took no action to require them to do so.

Neighboring property owners and various community organizations filed suit against the Dressels and the city, alleging the construction had degraded and devalued the neighborhood’s historic character.

The plaintiffs contended that the city’s failure to enforce the provisions of the municipal code intended to preserve historic districts violated the Fourteenth Amendment’s Due Process Clause by not enforcing the municipal code and sought injunctive and declaratory relief.

Senior U.S. District Judge Justin L. Quackenbush of the Eastern District of Washington granted the city’s motion for summary judgment and the Dressels’ motion to dismiss.

Writing for the appellate court, Judge Raymond C. Fisher explained that the plaintiffs were not seeking compensation for an otherwise proper interference amounting to a taking, but the invalidation of an arbitrary land use action. Such due process challenges are not foreclosed by the Takings Clause, he wrote.

No Protected Interest

Nonetheless, Fisher concluded, the plaintiffs failed to demonstrate that the city deprived them of a constitutionally protected life, liberty or property interest. The government’s failure to protect an individual from harms inflicted by private actors will not ordinarily give rise to liability, he explained.

Without more, the city’s approval or acquiescence to the construction by issuing the building permit was insufficient to render the Dressels conduct fairly attributable to the city, Fisher wrote.

Even assuming that the Dressels’ construction amounted to a governmental deprivation of a property interest, Fisher added, the plaintiffs did not allege executive action by the city which was unconstitutionally arbitrary.

The “‘irreducible minimum’” of a substantive due process claim challenging land use action is failure to advance any legitimate governmental purpose, amounting to an abuse of power lacking any reasonable justification he explained. “[A] routine, even if perhaps unwise or legally erroneous, executive decision to grant a third-party a building permit—falls short of being constitutionally arbitrary,” he concluded.

Furthermore, Fisher reasoned that the code statutes governing building permits did not create a constitutionally protected property right, assuming that a litigant could even have a constitutionally protected interest in the issuance of a building permit to a third party.

He explained that a statute will create a cognizable property right only if it compels a result which does not involve the exercise of discretion by a reviewing body, and that the historic preservation provisions still allowed discretionary permitting decisions by the city.

Fisher also concluded the district court had properly dismissed the claims based on an alleged violation of the National Historic Preservation Act and under the municipal code because the act does not create a private right of action and the code claims did not create federal subject matter jurisdiction.

Judges Ronald M. Gould and Sandra S. Ikuta joined Fisher in his opinion.

The case is Shanks v. Dressel, 06-35665.


Copyright 2008, Metropolitan News Company