Shanks v. Dressel

540 F.3d 1082

Michael J. SHANKS; Joan E. Shanks; Gregory Higgins; Thomas Fuchs; Colleen Fuchs; Patricia Mackin; G. Kay Cobb; Fred Hare; Josephine Hare; Robert Groman; Larry Oas, Plaintiffs, and

Douglas Byrd; Karen Kinzerbyrd; Laurel Havens; Kathleen Riley; Vern Byrd; Mary Byrd; Raymond Kelleher; Catherine Kelleher; Gregory Byrd; Kareena Byrd; Joyce J. Cleveland; Gregory Mills; Patt A. Mills; Mary Eberle; Nate Eberle; Dr. Philip A. Lenoue, Sr.; Francis A. Lenoue; Joanne Vincent; Arnold Vincent; Marceen Zappone; Dr. Matthew Thompson; Terese Thompson; Angelo

Roman; Lena Roman; Walter N. Wieber; Sharon P. Weiber; Vicki Signer; Steve Signer; Roberta Cobb; Todd Cobb; Ericc Ginn; Gabriele Luebcke; L. Monty Bippes; Logan Neighborhood Association; Logan Neighborhood Organization, Plaintiffs-Appellants, v. Vincent G. DRESSEL; Janet G. Dressel; Mike Penkunis; Ken Jenness; Larry Nacarrato; Dennis McConkey; Bill Leonetti; Dan Skindzier; Joe Wizner; Steve Franks; Dave Compton; John Pilcher; City of Spokane, Defendants-Appellees.

No. 06-35665.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2008.

Filed August 27, 2008.

Charles A. Cleveland, Spokane, WA, for the plaintiffs-appellants.

James S. Craven, City Attorney, Milton G. Rowland (argued), Assistant City Attorney, Spokane, WA, for the Spokane and Spokane employee defendants-appellees.

Steven Schneider, Murphy, Bantz & Bury P.S., Spokane, WA, for the Dressel defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington; Justin L. Quackenbush, Senior Judge, Presiding. D.C. No. CV-05-00346-JLQ.

Before: RAYMOND C. FISHER, RONALD M. GOULD and SANDRA S. IKUTA, Circuit Judges.

FISHER, Circuit Judge:

Vincent and Janet Dressel (the "Dressels") are developers who remodel and convert private homes into student residences. A group of homeowners and community organizations (collectively, "Logan Neighborhood"), concerned that the Dressels' construction was degrading and devaluing the historic character of their neighborhood, brought suit in federal district court seeking injunctive and declaratory relief. Logan Neighborhood principally contends that the city's alleged failure to enforce provisions of its zoning code intended to preserve historic districts violated the Fourteenth Amendment's Due Process Clause. Notwithstanding Logan Neighborhood's understandable concerns about the aesthetics and ambiance of the neighborhood, we conclude it has not stated a federal constitutional claim. Although not preempted by the Fifth Amendment's Takings Clause, see Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 856(9th Cir.2007), Logan Neighborhood's due process claim nonetheless fails. Its other claims also fail, so we affirm the district court's judgment against Logan Neighborhood.

BACKGROUND¹

The Mission Avenue Historic District ("District") lies just north of Gonzaga University in the city of Spokane, Washington ("Spokane"). The District is listed on the National Register of Historic Places, a designation conferred by the Secretary of the Interior pursuant to the National Historic Preservation Act of 1966 ("NHPA"). See 16 U.S.C. § 470a(a). It is architecturally noteworthy because it includes a "significant collection of late 19th and early 20th century houses located on one of the city's oldest landscaped boulevards." On both sides of Mission Avenue are a "variety of Queen Anne, Four Square, Craftsman, and bungalow style houses that reflect the substantial architecture of the period and the original suburban character of the area."

In March 2005, Spokane granted the Dressels 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. The Dressels demolished an existing garage on the property and erected a "box-like dormitory building[ ] ... attached" to the original house.

We summarize the municipal ordinances that Logan Neighborhood alleges have been violated. In 1981, the city amended the Spokane Municipal Code ("SMC") to provide "criteria and procedures for the ... management of historic landmarks." A newly created Historic Landmarks Commission was charged with the "stewardship of historic and architecturally-significant properties ... to effect the recognition and preservation of such properties." Two of its responsibilities are relevant here: reviewing applications for "certificates of appropriateness," as provided by SMC 17D.040.200, and reviewing requests for "administrative special permits," as provided by SMC 11.19.270. See SMC 17D.040.080(C)(1)(d), (f).

SMC 17D.040.200 requires owners to obtain a certificate of appropriateness for "work that affects the exterior ... of ... property within an historic district" or for "development or new construction within an historic district." In evaluating an application for a certificate of appropriateness, the Historic Landmarks Commission "uses the Secretary of the Interior's Standards for Rehabilitation and other general guidelines established and adopted by the commission." SMC 17D.040.210(B). The owner of a property and the Commission may negotiate "different management standards for a specific piece of property," subject to the approval of the Spokane City Council. See SMC 17D.040.270-.280.

SMC 11.19.270 provides for special "development standards" that apply "only to those historic districts for which `defining characteristics' have been prepared by the landmarks commission, and those structures or properties listed in the National Register of Historic Places." When these standards apply, proposed construction requires an "administrative special permit" from the director of planning services. The Historic Landmarks Commission "make[s] recommendations concerning the approval or denial of the special permit." SMC 17D.040.080(C)(1)(f). It "issues a certificate of appropriateness in support of approval" only if the construction is "of a character which is consistent with the defining characteristics of the historic district, or the U.S. Department of Interior standards in the case of structures or properties listed in the National Register but not located within an historic district." SMC 11.19.270(D)(3)(b). If no action is taken within 35 days, the application is "deemed approved." SMC 11.19.270(D)(3)(c). In any event, the Commission's recommendation "will not otherwise preclude" the director of planning services from reaching a "contrary decision" upon "consideration of other factors of public interest." Id.

The Dressels did not seek a certificate of appropriateness or an administrative special permit for their development of the 428 East Mission property, nor has Spokane taken any steps to require them to do so. Logan Neighborhood alleges that the Dressels' construction has compromised the historic character of the Mission Avenue Historic District, resulting in harm to its "cultural, architectural, educational, recreational, aesthetic, historic, and economic interests." Its complaint asserts three claims: (1) that Spokane violated 42 U.S.C. § 1983 and the Due Process Clause of the Fourteenth Amendment by not enforcing the Spokane Municipal Code; (2) that Spokane and the Dressels violated the National Historic Preservation Act; and (3) that Spokane and Spokane employees violated the Spokane Municipal Code. The district court granted Spokane's motion for summary judgment and the Dressels' motion to dismiss.

DISCUSSION

We have jurisdiction under 28 U.S.C. § 1291.² We review de novo the district court's dismissal for lack of subject matter jurisdiction, dismissal for failure to state a claim and grant of summary judgment. Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir.2007); Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 898 (9th Cir.2006). We may affirm on any ground supported by the record. Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir.2003) (per curiam).

I. Due Process Clause

Logan Neighborhood complains that Spokane and its employees failed to enforce the Spokane Municipal Code and take action "sufficient ... to protect the Mission Avenue Historic District."³ Spokane's alleged failure to "discharge its mandatory duties" under the Spokane Municipal Code was, Logan Neighborhood asserts, "arbitrary, capricious, ... and not in accordance with ... [the] procedure required by law." By issuing a building permit to the Dressels without first requiring that they obtain a certificate of appropriateness and an administrative special permit, Spokane allegedly deprived Logan Neighborhood of constitutionally protected property interests.

As we shall explain, we agree with Logan Neighborhood that the Takings Clause of the Constitution does not invariably preempt a real property owner's challenge under the Due Process Clause. See Crown Point, 506 F.3d at 856. A plaintiff must do more than clear this initial hurdle to state a cognizable due process claim, however. Because Spokane's conduct did not deprive Logan Neighborhood of a constitutionally cognizable property interest, we affirm the district court's entry of summary judgment in favor of the city.

A. Preemption by the Takings Clause

Relying on Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936 (9th Cir.2004), and Armendariz v. Penman, 75 F.3d 1311 (9th Cir.1996) (en banc), Spokane asserts that any claim that governmental action caused a diminution in the value of real property involves the Takings Clause, not the Due Process Clause. We have rejected this very argument. See, e.g., North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 484-85 (9th Cir.2008); Action Apartment Ass'n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1025 (9th Cir. 2007); Crown Point, 506 F.3d at 856; Equity Lifestyle Prop., Inc. v. County of San Luis Obispo, 505 F.3d 860, 870 n. 16 (9th Cir.2007). Expressly...