Maureen Richter v. City of Des Moines

MEMORANDUM **

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 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 *757 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…

dissenting in part:

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 , 49 S.Ct. 50 , 73 L.Ed. 210 (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 757. 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…

FILED

NOT FOR PUBLICATION JUL 08 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAUREEN P RICHTER, No. 12-35370

Plaintiff - Appellant, D.C. No. 2:10-cv-00461-MJP

v.

MEMORANDUM*

CITY OF DES MOINES, a municipal corporation,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, Chief 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…