IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHAEL DURLAND; KATHLEEN No. 69134-1-1
FENNELL; and DEER HARBOR CO
BOATWORKS, DIVISION ONE CD
Appellants, — 1
cn •j •
en --"
SAN JUAN COUNTY; WES UNPUBLISHED
HEINMILLER; and ALAN STAMEISEN,
FILED: September 30. 2013
Respondents.
Cox, J. — "A prima facie case under 42 U.S.C. § 1983 requires the
plaintiff to show that a person, acting under color of state law, deprived the
plaintiff of a federal constitutional or state-created property right without due
process of law."1 "Property interests are not created by the constitution but are
reasonable expectations of entitlement derived from independent sources such
as state law."2
1 Mission Springs. Inc. v. City of Spokane. 134 Wn.2d 947, 962, 954 P.2d
250(1998).
2id, at 962 n.15 (citing Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.
Ct. 2701, 33 L. Ed. 2d 548 (1972)).
No. 69134-1-1/2
Here, property owners Michael Durland, Kathleen Fennell, and Deer
Harbor Boatworks (collectively "Durland") fail to demonstrate any constitutionally
protected property right either under the San Juan County Code or otherwise.
Accordingly, the trial court properly dismissed this action. We affirm.3
Wesley Heinmiller and Alan Stameisen (collectively "Heinmiller") own
property on Orcas Island in San Juan County. On August 8, 2011, Heinmiller
applied for a permit to build a second story on his garage located on his property.
On November 1, the San Juan County Department of Community
Development and Planning granted the building permit. The San Juan County
Code does not require public notice for the issuance of this type of permit.
Durland owns property adjacent to Heinmiller's property. On December 8,
Durland received documents based on a Public Records Act request he made to
San Juan County. During his review of these documents, he discovered that the
County had issued a building permitto Heinmiller over a month earlier.
On December 19, Durland appealed the issuance of this permit to the San
Juan County Hearing Examiner. The hearing examiner dismissed Durland's
appeal as untimely.
Durland then commenced this action. The complaint, after stating a
number of factual allegations, states that the hearing examiner's decision and the
San Juan County Code violate 42 U.S.C. § 1983.4 The request for relief seeks a
3We deny Heinmiller's motion to strike portions of Durland's statement of
the case in his opening brief. We have disregarded materials not properly before
us for purposes of deciding this case.
4 Clerk's Papers at 11.
No. 69134-1-1/3
declaration that Durland's due process rights were violated by the lack of notice
and opportunity to be heard on the issuance of the building permit. There is no
substantive challenge in the complaint to the permit the County issued.
In May 2012, San Juan County moved for summary judgment in this case
on the basis that Durland could not establish a constitutionally protected property
interest. The superior court granted the motion.
Durland appeals.
DISMISSAL OF 42 U.S.C. § 1983 CLAIM
Durland argues that the trial court erred when it summarily dismissed his
42 U.S.C. § 1983 claim. He contends that he was deprived of a constitutionally
protected interest without a meaningful opportunity to be heard. We disagree.
This court reviews summary judgment determinations de novo, engaging
in the same inquiry as the trial court.5 Summary judgment is proper only when
there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law.6 Further, summary judgment is appropriate if
reasonable minds could reach but one conclusion from all the evidence.7
Constitutionally Protected Property Interest
Durland argues that he has a constitutionally protected property interest
that supports his § 1983 claim against San Juan County. Specifically, he
5 Harberd v. City of Kettle Falls. 120 Wn. App. 498, 507, 84 P.3d 1241
(2004).
6CR 56(c); Peterson v. Groves. 111 Wn. App. 306, 310, 44 P.3d 894
(2002).
7 Harberd. 120 Wn. App. at 507-08.
No. 69134-1-1/4
contends that the San Juan County Code's height and size limitations for garage
and accessory buildings confer a property interest in having the County comply
with these limitations. He asserts that he is entitled to notice and a hearing
before he is deprived of that claimed right. We disagree.
Under 42 U.S.C. §1983,
Every person who, under color of any statute, ordinance, regulation
... of any State . . . subjects, or causes to be subjected, any citizen
of the United States ... to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper
proceeding for redress ....
"To establish a prima facie due process violation under § 1983, the plaintiff
must show that the defendant deprived the plaintiff of a constitutionally protected
property right."8 "Property interests are not created by the constitution but are
reasonable expectations of entitlement derived from independent sources such
as state law."9 '"A protected property interest exists if there is a legitimate claim
ofentitlement to a specific benefit.'"10 More specifically, "a zoning ordinance can
create a property right."11
8 Manna Funding. LLC v. Kittitas County. 173 Wn. App. 879, 894-95, 295
P.3d 1197 (2013) (citing Mission Springs. Inc.. 134 Wn.2d at 962: Robinson v.
City of Seattle. 119 Wn.2d 34, 58, 830 P.2d 318 (1992)).
9 Mission Springs. Inc.. 134 Wn.2d at 962 n.15 (citing Bd. of Regents. 408
U.S. at 577).
10 Nieshe v. Concrete Sch. Dist.. 129 Wn. App. 632, 641-42, 127 P.3d 713
(2005) (internal quotation marks omitted) (quoting Goodisman v. Lytle, 724 F.2d
818, 820 (9th Cir. 1984)).
11
Asche v. Bloomouist. 132 Wn. App. 784, 797-98, 133 P.3d 475 (2006).
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This court reviews de novo questions of law, including statutory
construction.12
Here, Durland relies primarily on Asche v. Bloomquist to make his case.13
In Asche. Division Two considered whether the Asches had a property interest
under a Kitsap County zoning ordinance.14 It concluded that the Asches had a
property interest in preventing their neighbors, the Bloomquists, from building a
structure over 28 feet in height.15 The court came to this conclusion because ofa
"View Protection Overlay Zone" in the Kitsap County Code.16 According to this
zoning ordinance, a building may be built up to 28 feet without any
prerequisites.17 But a building taller than 28 feet but less than 35 feet could "only
be approved ifthe views of adjacent properties, such as that of the Asches,
are not impaired."18
12 ]d at 797.
13 Opening Brief of Appellants at 17-18 (citing Asche v. Bloomguist. 132
Wn. App. 784, 133 P.3d 475 (2006)).
14 Asche. 132 Wn. App. at 797-99.
15]pLat798.
16 Id
17 kL
18 Id. (emphasis added).
No. 69134-1-1/6
The court concluded that the Asches had "a property right, created by the
zoning ordinance, in preventing the Bloomquists from building a structure over 28
feet in height."19 Thus, procedural due process applied to this property right.20
Here, Durland cites specific provisions of the San Juan County Code to
support his assertion that there is a similar constitutionally protected property
right in this case. These provisions are found within the Shoreline Master
Program. Specifically, he relies on SJCC 18.50.330(B)(14), which regulates the
height of residential structures, and SJCC 18.50.330(B)(15), which regulates the
height and size of garage and accessory buildings.
Durland also relies on SJCC 18.50.330(E)(2)(a), (3), and (4).
Respectively, these provisions discuss which accessory uses and developments
are exempt from permitting requirements, when a shoreline substantial
development permit is required, and when accessory structures may be
permitted as conditional uses.21
It is noteworthy that not one of these cited provisions mentions any
consideration of adjacent property views. This fact alone distinguishes this case
from Asche.22
The only reference to views in any of these cited provisions is in SJCC
18.50.330(B)(14). That provision generally limits the height of residential
19 Id.
20 Id.
21 SJCC 18.50.330(E)(2)(a), (3), and (4).
22 See Asche. 132 Wn. App. at 798.
No. 69134-1-1/7
structures to 28 feet, provided that heights above 35 feet are permitted as
conditional uses.23 In such cases, the "applicant must demonstrate that the
structure will not result in significant adverse visual impacts, nor interfere with
normal, public, visual access to the water."24 This language refers to "public,
visual access to water."25 Significantly, this language does not refer to visual
impacts of adjacent property owners.
Additionally, as the trial court correctly reasoned, SJCC 18.50.140 assists
in defining what views are at issue here. This provision generally addresses
public views with one exception. SJCC 18.50.140(D) describes view protection
for "surrounding properties to the shoreline and adjoining water." But that
protection applies when there is "development on or over the water."26 In the
instant case, there is no "development on or over the water." Thus, harmonizing
the provisions at issue, the visual impacts language on which Durland relies does
not apply to adjacent property owners.
At oral argument for this case, Durland advanced the theory that the cited
statutory framework on which the claim rests is mandatory, not discretionary, in
character. From this, Durland argues that a property right exists. Neither the
briefing below nor the briefing here is persuasive on this point. Accordingly, we
reject this argument.
23SJCC18.50.330(B)(14).
24 Id
25 jd
26 SJCC 18.50.140(D).
No. 69134-1-1/8
In sum, the superior court correctly determined that these zoning
ordinances do not confer a property right on Durland to prevent Heinmiller from
building a garage that could impact Durland's view as an adjacent property
owner. Consequently, procedural due process protections do not apply. The
court properly dismissed the 42 U.S.C. § 1983 claim.
ATTORNEY FEES
Heinmiller requests an award of attorney fees and costs under RCW
4.84.370. For the reasons discussed below, we deny this request.
RCW 4.84.370(1) provides for an award of "reasonable attorneys' fees
and costs ... to the prevailing party or substantially prevailing party on appeal
before the court of appeals ... of a decision by a county ... to issue, condition,
or deny a . . . building permit
Here, Durland argues that fees are not permitted because Heinmiller is not
a prevailing party. This argument is based, in turn, on the fact there was no
hearing on the land use decision below. As this court recently held in Durland v.
San Juan County.27 which also arose from the facts in this case, that argument is
untenable in Division One. The plain words of the statute do not require a party
to prevail on the merits to be entitled to fees.28 Thus, this argument does not
serve as a basis for our decision to reject an award of attorney fees.
27
175 Wn. App. 316, 305 P.3d 246, 251 (2013).
28 Id (citing Prekeges v. King County. 98 Wn. App. 275, 285, 990 P.2d
405(1999)).
8
No. 69134-1-1/9
Instead, we reject an award of fees in this case because it is, essentially, a
42 U.S.C. § 1983 claim, which does not permit an award of fees to a defendant.
We say this despite the heading on the complaint. As we already noted, there
was no substantive attack against the permit. Rather, this was a claim that the
procedures in this case deprived Durland of constitutionally protected rights. We
also note that fees were awarded to Heinmiller in the Skagit County case, which
addressed the LUPA challenge.29 In sum, fees are not awardable under the
special circumstances of this case.
The award of costs, as distinct from attorney fees, to Heinmiller, as the
substantially prevailing party, may be made upon timely compliance with the
provisions of RAP 14.1 et seq.
We affirm the summary judgment order.
CtfrX
WE CONCUR:
^yQju^efiO^
29
Id.