Posted by: Patricia Salkin | January 15, 2014

9th Circuit Court of Appeals Finds City Code Provision Requiring a Hearing Examiner to Give Deference to City’s Initial Permit Decision Did Not Violate Due Process or Equal Protection

Richter appealed from the district court’s order granting summary judgment in favor of the City of Des Moines (“the City”). Richter applied for permits to construct a trail that would connect her home on the Puget Sound bluff to the beachfront below. She brought suit 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.

The City denied Richter’s trail permits because she failed to comply with applicable state and local construction and environmental codes. Since this compliance is a legitimate government interest, the court found that the City was justified in ensuring that the proposed work adequately protected an environmentally sensitive area. This Ninth Circuit found that the district court therefore did not err in dismissing Richter’s substantive due process claim. Furthermore, Richter failed to show that the City intentionally, and without a rational basis, treated her differently from others similarly situated. 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.

Richter v. City of Des Moines, 532 Fed. Appx. 755, 758 (9th Cir. 2013)(unpublished), as amended (Aug. 19, 2013)

The opinion can be accessed at: http://cdn.ca9.uscourts.gov/datastore/memoranda/2013/07/08/12-35370.pdf


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