Byrd v. Dressel ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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 KINZER-
BYRD; LAUREL HAVENS; KATHLEEN
RILEY; VERN BYRD; MARY BYRD;
RAYMOND KELLEHER; CATHERINE No. 06-35665
KELLEHER; GREGORY BYRD;
KAREENA BYRD; JOYCE J.  D.C. No.
CV-05-00346-JLQ
CLEVELAND; GREGORY MILLS; PATT
OPINION
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;

11825
11826 SHANKS v. DRESSEL
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.

Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, Senior Judge, Presiding
Argued and Submitted
February 7, 2008—Seattle, Washington
Filed August 27, 2008
Before: Raymond C. Fisher, Ronald M. Gould and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Fisher
SHANKS v. DRESSEL 11829
COUNSEL
Charles A. Cleveland, Spokane, Washington, for the
plaintiffs-appellants.
James S. Craven, City Attorney, Milton G. Rowland (argued),
Assistant City Attorney, Spokane, Washington, for the Spo-
kane and Spokane employee defendants-appellees; Steven
Schneider, Murphy, Bantz & Bury P.S., Spokane, Washing-
ton, for the Dressel defendants-appellees.
OPINION
FISHER, Circuit Judge:
Vincent and Janet Dressel (the “Dressels”) are developers
who remodel and convert private homes into student resi-
dences. A group of homeowners and community organiza-
tions (collectively, “Logan Neighborhood”), concerned that
the Dressels’ construction was degrading and devaluing the
11830 SHANKS v. DRESSEL
historic character of their neighborhood, brought suit in fed-
eral 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, Washing-
ton (“Spokane”). The District is listed on the National Regis-
ter 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 “signifi-
cant 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 origi-
nal suburban character of the area.”
1
On a motion to dismiss, we take the complaint’s allegations of fact as
true and construe the complaint in the light most favorable to the plaintiff.
See Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007).
On a motion for summary judgment, we view the evidence in the light
most favorable to the nonmoving party and draw all reasonable inferences
in favor of that party. See Galvin v. Hay, 374 F.3d 739, 745 (9th Cir.
2004).
SHANKS v. DRESSEL 11831
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 Dis-
trict 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 Neigh-
borhood 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 Commis-
sion was charged with the “stewardship of historic and
architecturally-significant properties . . . to effect the recogni-
tion and preservation of such properties.” Two of its responsi-
bilities are relevant here: reviewing applications for
“certificates of appropriateness,” as provided by SMC
17D.040.200, and reviewing requests for “administrative spe-
cial 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 Commis-
sion may negotiate “different management standards for a
specific piece of property,” subject to the approval of the Spo-
kane City Council. See SMC 17D.040.270-.280.
SMC 11.19.270 provides for special “development stan-
dards” that apply “only to those historic districts for which
‘defining characteristics’ have been prepared by the land-
11832 SHANKS v. DRESSEL
marks commission, and those structures or properties listed in
the National Register of Historic Places.” When these stan-
dards apply, proposed construction requires an “administra-
tive special permit” from the director of planning services.
The Historic Landmarks Commission “make[s] recommenda-
tions concerning the approval or denial of the special permit.”
SMC 17D.040.080(C)(1)(f). It “issues a certificate of appro-
priateness in support of approval” only if the construction is
“of a character which is consistent with the defining charac-
teristics of the historic district, or the U.S. Department of Inte-
rior standards in the case of structures or properties listed in
the National Register but not located within an historic dis-
trict.” 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 recom-
mendation “will not otherwise preclude” the director of plan-
ning 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 Spo-
kane’s motion for summary judgment and the Dressels’
motion to dismiss.
SHANKS v. DRESSEL 11833
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 His-
toric 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
2
Although we reject Logan Neighborhood’s claims on the merits, they
are not so “insubstantial, implausible, foreclosed by prior decisions of this
Court, or otherwise completely devoid of merit as not to involve a federal
controversy.” See Oneida Indian Nation of N.Y. v. County of Oneida, 414
U.S. 661, 666 (1974).
3
We affirm the dismissal of this claim as to the Dressels because Logan
Neighborhood has not pursued on appeal its argument that they acted
under color of law. See Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998)
(explaining that we “will not ordinarily consider matters on appeal that are
not specifically and distinctly argued in appellant’s opening brief”) (inter-
nal quotation marks omitted); see generally Lugar v. Edmondson Oil Co.,
Inc., 457 U.S. 922, 937 (1982) (“Our cases have . . . insisted that the con-
duct allegedly causing the deprivation of a federal right be fairly attribut-
able to the State.”); Howerton v. Gabica, 708 F.2d 380, 382-83 (9th Cir.
1983) (identifying governmental nexus, joint action, public function and
compulsion tests for determining whether action taken by private individ-
ual is “under color of law”).
11834 SHANKS v. DRESSEL
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 invari-
ably 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 cogniza-
ble 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
[1] 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 Pro-
cess 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 repudiating Squaw Valley’s suggestion that
a “substantive due process challenge brought in the context of
regulating use of real property might not be viable,” we
recently held that “the Armendariz line of cases can no longer
be understood to create a blanket prohibition of all property-
related substantive due process claims.” Action Apartment,
509 F.3d at 1025 (internal quotation marks omitted). Accord-
ingly, we have no difficulty concluding that the Takings
Clause does not “foreclose[ ] altogether” a due process claim
like Logan Neighborhood’s. See Crown Point, 506 F.3d at
SHANKS v. DRESSEL 11835
857. Logan Neighborhood does not seek compensation for an
otherwise proper interference amounting to a taking, but
rather invalidation of a land use action that is “so arbitrary or
irrational that it runs afoul of the Due Process Clause.” Lingle
v. Chevron U.S.A., Inc., 544 U.S. 528, 542 (2005) (citing
County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998));
see also Crown Point, 506 F.3d at 855.
Logan Neighborhood would have us stop there, reverse the
district court’s judgment and remand for further proceedings.
We decline to do so because Logan Neighborhood has not
stated a viable claim on either a substantive due process or a
procedural due process theory.4
B. Substantive Due Process
[2] To state a substantive due process claim, the plaintiff
must show as a threshold matter that a state actor deprived it
of a constitutionally protected life, liberty or property interest.
See Action Apartment, 509 F.3d at 1026. Logan Neighbor-
hood’s “failure-to-protect” and “failure-to-enforce” allega-
tions do not suffice. The Constitution generally does not
require the state to “protect the life, liberty, and property of
its citizens against invasion by private actors.” DeShaney v.
Winnebago County Dep’t of Soc. Serv., 489 U.S. 189, 195
(1989). Consequently, the state’s failure to protect an individ-
ual from “harms inflicted by persons not acting under color of
law” will not ordinarily give rise to § 1983 liability. Huffman
v. County of Los Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998).5
4
The claim is ripe for review because the challenged governmental con-
duct — the city’s issuance of a building permit and alleged refusal to
enforce the Spokane Municipal Code — has already occurred, and any
injuries stemming from that conduct are ongoing. See Kawaoka v. City of
Arroyo Grande, 17 F.3d 1227, 1232 (9th Cir. 1994); cf. Action Apartment,
509 F.3d at 1027.
5
DeShaney’s rule “that members of the public have no constitutional
right to sue state actors who fail to protect them from harm inflicted by
11836 SHANKS v. DRESSEL
Logan Neighborhood does not argue that the Dressels were
themselves acting under color of law — for example, that
they conspired with Spokane officials in pursuit of a common
end, see Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002)
— when they undertook their construction. See supra note 3.
Under these circumstances, Spokane had no independent con-
stitutional duty to safeguard the Dressels’ neighbors from the
negative consequences — economic, aesthetic or otherwise —
of the Dressels’ construction project. See Gagliardi v. Vill. of
Pawling, 18 F.3d 188, 192 (2d Cir. 1994) (citing DeShaney
and explaining that substantive due process does not generally
require government to enforce laws against private wrongdo-
ers); Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041,
1045 (9th Cir. 1994) (same).
Logan Neighborhood urges that Spokane applied the law
improperly and therefore took an affirmative step beyond sim-
ply not enforcing it at all. It contends that Spokane unlawfully
and arbitrarily issued a building permit to the Dressels
because it did not first require them to obtain a certificate of
appropriateness and administrative special permit. We do not
agree that the issuance of a building permit to the Dressels
made their conduct fairly attributable to Spokane in the sense
required for § 1983 liability. Without more, Spokane’s
“[m]ere approval of or acquiescence in” the Dressels’ con-
third parties ‘is modified by two exceptions: (1) the ‘special relationship’
exception; and (2) the ‘danger creation exception,’ ” neither of which
applies here. See Johnson v. City of Seattle, 474 F.3d 634, 639 (9th Cir.
2007) (quoting L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992)). When
the state has “created a special relationship with a person, as in the case
of custody or involuntary hospitalization,” we have imposed liability
“premised on an abuse of that special relationship.” Grubbs, 974 F.2d at
121. The danger creation exception, on the other hand, requires affirma-
tive conduct on the part of the state creating a danger that the plaintiff
would not have otherwise faced, as when the police reveal an accuser’s
name after assuring her that she would be warned before any further action
was taken. See, e.g., Kennedy v. City of Ridgefield, 439 F.3d 1055, 1058,
1061 (9th Cir. 2006).
SHANKS v. DRESSEL 11837
struction is “not sufficient to justify holding [it] responsible
for [that construction] under the terms of the Fourteenth
Amendment.” Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982).6
But even if Logan Neighborhood could show, for example,
that the decrease in value of its homes caused by the Dressels’
construction amounted to a governmental deprivation of a
property interest — and we hold above that it cannot, on these
facts — its substantive due process claim would fail for the
independent reason that it has not alleged executive action on
Spokane’s part that rises to the level of the constitutionally
arbitrary. The Supreme Court has “long eschewed . . . height-
ened [means-ends] scrutiny when addressing substantive due
process challenges to government regulation” that does not
impinge on fundamental rights. Lingle, 544 U.S. at 545; see
also Halverson v. Skagit County, 42 F.3d 1257, 1262 (9th Cir.
1994). Accordingly, the “irreducible minimum” of a substan-
tive due process claim challenging land use action is failure
to advance any legitimate governmental purpose. North Pacif-
ica LLC, 526 F.3d at 484; see Dodd v. Hood River County, 59
F.3d 852, 864 (9th Cir. 1995). The “exceedingly high burden”
required to show that Spokane or its employees behaved in a
constitutionally arbitrary fashion has not been met here. See
Matsuda v. City & County of Honolulu, 512 F.3d 1148, 1156
(9th Cir. 2008) (internal quotation marks omitted).
[3] When executive action like a discrete permitting deci-
sion is at issue, only “egregious official conduct can be said
to be ‘arbitrary in the constitutional sense’ ”: it must amount
to an “abuse of power” lacking any “reasonable justification
in the service of a legitimate governmental objective.” Lewis,
523 U.S. at 846; see City of Cuyahoga Falls v. Buckeye Cmty.
Hope Found., 538 U.S. 188, 198 (2003) (rejecting substantive
6
We express no view about whether Spokane’s “approval or acquies-
cence” would suffice to make the city a proximate cause of Logan Neigh-
borhood’s alleged damages under, for example, Washington’s state law of
municipal liability.
11838 SHANKS v. DRESSEL
due process claim because city engineer’s refusal to issue
building permits “in no sense constituted egregious or arbi-
trary government conduct”). Official decisions that rest on an
erroneous legal interpretation are not necessarily constitution-
ally arbitrary. See Collins v. City of Harker Heights, 503 U.S.
115, 128-30 (1992); Brittain v. Hansen, 451 F.3d 982, 996
(9th Cir. 2006). Logan Neighborhood’s contrary, and errone-
ous, assumption that every state law violation invariably gives
rise to a substantive due process claim is inconsistent with the
principle that substantive due process is not a “font of tort
law” that superintends all official decisionmaking. See Lewis,
523 U.S. at 847-48 & n.8.
[4] The conduct Logan Neighborhood alleges — a routine,
even if perhaps unwise or legally erroneous, executive deci-
sion to grant a third-party a building permit — falls short of
being constitutionally arbitrary. There is no suggestion, for
instance, of a sudden change in course, malice, bias, pretext
or, indeed, anything more than a lack of due care on Spo-
kane’s part.7 Compare Kawaoka v. City of Arroyo Grande, 17
F.3d 1227, 1237-38 (9th Cir. 1994) (rejecting substantive due
process claim when plaintiff “merely assert[ed]” that decision
was arbitrary and pretextual without providing any evidence),
with Del Monte Dunes at Monterey, Ltd. v. City of Monterey,
920 F.2d 1496, 1508 (9th Cir. 1990) (concluding that there
7
The Historic Landmarks Commission has never issued certificates of
appropriateness or administrative special permits for properties in the Mis-
sion Avenue Historic District. Spokane officials are of the view that the
provisions of SMC 11.19.270 are presently inoperative because no “defin-
ing characteristics” have been prepared for the Mission Avenue Historic
District. The cases suggesting that an individual who has been singled out
for differential treatment in an “irrational and wholly arbitrary” manner
could bring a substantive due process or “class of one” equal protection
claim are therefore inapposite. Cf., e.g., Engquist v. Oregon Dep’t of
Agric., 128 S. Ct. 2146, 2152-53 (2008) (internal quotation marks omit-
ted); Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2000); Valley Out-
door, Inc. v. City of Riverside, 446 F.3d 948, 955 (9th Cir. 2006); Bateson
v. Geisse, 857 F.2d 1300, 1303 (9th Cir. 1988).
SHANKS v. DRESSEL 11839
was triable issue of fact when city approved project subject to
conditions, plaintiff fulfilled those conditions and then city
“abruptly changed course and rejected the plan, giving only
broad conclusory reasons”). It is “at least fairly debatable”
that Spokane rationally furthered its legitimate interest in
facilitating residential housing in a residential neighborhood
by issuing a building permit to the Dressels. See Halverson,
42 F.3d at 1262 (internal quotation marks omitted). When
reviewing a substantive due process challenge, this suffices;
our task is not to balance “the public interest supporting the
government action against the severity of the private depriva-
tion.” Kawaoka, 17 F.3d at 1228.
[5] We reject as an erroneous legal conclusion Logan
Neighborhood’s assertion that Spokane and its employees
acted in a constitutionally arbitrary manner. See Western Min-
ing Council v. Watt, 643 F.2d 618, 628-29 (9th Cir. 1981).
For this reason, too, we hold that it has not stated a substan-
tive due process claim.
C. Procedural Due Process
We are also not convinced by Logan Neighborhood’s argu-
ment that it has been deprived of procedural due process
because it did not have fair notice and an opportunity to be
heard before Spokane issued the Dressels a building permit.
Logan Neighborhood claims a constitutionally protected prop-
erty interest in the denial of the permit unless the city “compl-
[ied] with the Spokane Municipal Code applicable to historic
districts.” It contends that the historic preservation provisions
obliged Spokane to hold a public “design review taking into
account the Mission Avenue Historic District” and complying
with the certificate of appropriateness and administrative spe-
cial permit requirements.8 Even if Logan Neighborhood’s
8
The Spokane Municipal Code directs the “official responsible for pro-
cessing the application” for “action which may require a certificate of
appropriateness” — for example, a building permit — to request review
by the Historic Landmarks Commission. See SMC 17D.040.240. The ordi-
nance then provides for a public comment period, as well as a noticed pub-
lic hearing. See SMC 17D.040.260(C)(1)-(3).
11840 SHANKS v. DRESSEL
interpretation of the Spokane Municipal Code is correct —
the parties dispute whether construction in the District is sub-
ject to those additional requirements — it has not stated a via-
ble claim.
The claim is an unusual one; more typically, the plaintiff
asserts that it personally was denied a permit without due pro-
cess of law, not that someone else was granted a permit with-
out the decisionmaker following the procedure established by
state law. See Gagliardi, 18 F.3d at 191 (describing argument
as “rather unique”); see generally Dumas v. Kipp, 90 F.3d
386, 392 (9th Cir. 1996) (citing O’Bannon v. Town Court
Nursing Ctr., 447 U.S. 773 (1980), and noting distinction
between direct and indirect beneficiaries of government regula-
tion).9 Assuming without deciding that a property owner ever
could have a constitutionally protected interest in the proper
application of zoning restrictions to neighboring properties,
see id. at 192, we conclude that Logan Neighborhood’s proce-
dural due process claim fails because Spokane’s historic pres-
ervation provisions do not “contain[ ] mandatory language”
that significantly constrains the decisionmaker’s discretion.
Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir. 1980).
9
Claims premised on the government’s treatment of a third-party must
satisfy stringent constitutional standing requirements. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561-62 (1992) (“When . . . a plain-
tiff’s asserted injury arises from the government’s allegedly unlawful reg-
ulation (or lack of regulation) of someone else, much more is needed [to
establish causation and redressability].”). We are satisfied that, at the
pleadings stage, Logan Neighborhood has adequately alleged that its inju-
ries are fairly traceable to Spokane’s conduct and that a judgment in its
favor likely would redress those injuries. See LSO, Ltd. v. Stroh, 205 F.3d
1146, 1156 (9th Cir. 2000); Soc’y Hill Towers Owners’ Ass’n v. Rendell,
210 F.3d 168, 176-77 (3d Cir. 2000). Because the defendants do not attack
Logan Neighborhood’s prudential standing, any such challenge is waived.
See Bd. of Natural Res. of State of Wash. v. Brown, 992 F.2d 937, 945-46
(9th Cir. 1993); see generally Valley Forge Christian Coll. v. Am. United
for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982).
SHANKS v. DRESSEL 11841
[6] We apply our conventional analytic framework. See
Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319
F.3d 1211, 1217 & n.4 (10th Cir. 2003) (rejecting distinction
between inquiry for “due process claims brought by a land-
owner who received an unfavorable decision on its own appli-
cation for a particular land use” and inquiry for claim brought
“challeng[ing] the decision . . . to grant [a third-party’s] pro-
posed land use”) (emphasis added); see also Gagliardi, 18
F.3d at 192-93. To obtain relief on a procedural due process
claim, the plaintiff must establish the existence of “(1) a lib-
erty or property interest protected by the Constitution; (2) a
deprivation of the interest by the government; [and] (3) lack
of process.” Portman v. County of Santa Clara, 995 F.2d 898,
904 (9th Cir. 1993). The Due Process Clause forbids the gov-
ernmental deprivation of substantive rights without constitu-
tionally adequate procedure. See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 541 (1985). Not every procedural
requirement ordained by state law, however, creates a sub-
stantive property interest entitled to constitutional protection.
See Dorr v. County of Butte, 795 F.2d 875, 877 (9th Cir.
1986); see also Town of Castle Rock v. Gonzales, 545 U.S.
748, 764 (2005); Hayward v. Henderson, 623 F.2d 596, 597
(9th Cir. 1980). Rather, only those “rules or understandings”
that support legitimate claims of entitlement give rise to pro-
tected property interests. Bd. of Regents v. Roth, 408 U.S.
564, 577 (1972).
Logan Neighborhood does not have a legitimate claim of
entitlement to the denial of the Dressels’ permit in accordance
with the historic preservation provisions. Only if the govern-
ing statute compels a result “upon compliance with certain
criteria, none of which involve the exercise of discretion by
the reviewing body,” does it create a constitutionally pro-
tected property interest. Thornton v. City of St. Helens, 425
F.3d 1158, 1164-65 (9th Cir. 2005); see also Foss v. Nat’l
Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998)
(holding that “specific, mandatory” and “carefully circum-
scribed” requirements constrained discretion enough to give
11842 SHANKS v. DRESSEL
rise to property interest). Conversely, “a statute that grants the
reviewing body unfettered discretion to approve or deny an
application does not create a property right.” Thornton, 425
F.3d at 1164. There is no protected property interest if “the
reviewing body has discretion . . . to impose licensing criteria
of its own creation.” Id. at 1165.
[7] We have not been directed to any statutory language
that “impose[s] particularized standards . . . that significantly
constrain” Spokane’s discretion to issue the permits in ques-
tion and would create a protected property interest in the per-
mits’ denial. See Fidelity Fin. Corp. v. Fed. Home Loan Bank
of San Francisco, 792 F.2d 1432, 1436 (9th Cir. 1986). The
Historic Landmarks Commission is to apply “defining charac-
teristics . . . prepared” and “general guidelines established and
adopted” by that very same body. The Commission also has
the freedom to negotiate “different management standards”
for any particular piece of property. In deciding whether to
approve an administrative special permit, the director of plan-
ning services is to apply “other factors of public interest” in
an unspecified way. Moreover, the ordinance requires only
that the ultimate decisionmaker “use[ ]” or “consider[ ]” those
open-ended criteria; it does not mandate any outcome.
Finally, we are mindful that, as a matter of Washington law,
building codes are not generally construed to impose an affir-
mative duty upon local governments to initiate compliance
actions, and Logan Neighborhood has not directed us to any
special features of Spokane’s historic preservation ordinance.
See Atherton Condo. Apartment-Owners Ass’n Bd. of Dirs. v.
Blume Dev. Co., 799 P.2d 250, 264-65 (Wash. 1990); Taylor
v. Stevens County, 759 P.2d 447, 450 (Wash. 1988).10 We
conclude that the historic preservation provisions of the Spo-
kane Municipal Code do not create a constitutionally cogniza-
10
Cf. Asche v. Bloomquist, 133 P.3d 475, 479-82 (Wash. App. 2006)
(reasoning that plaintiffs “had a property right, created by the . . . [view
protection] zoning ordinance, in preventing [their neighbors] from build-
ing a structure over” a certain height without their approval).
SHANKS v. DRESSEL 11843
ble property interest in the denial of a third-party’s building
permit.
[8] From this it follows that Logan Neighborhood’s proce-
dural due process claim fails. Absent a substantive property
interest in the outcome of procedure, Logan Neighborhood is
not constitutionally entitled to insist on compliance with the
procedure itself. “To hold otherwise would immediately
incorporate virtually every regulation into the Constitution.”
Clemente v. United States, 766 F.2d 1358, 1364 (9th Cir.
1985). The Tenth and Second Circuits rejected very similar
claims in Crown Point I and Gagliardi, respectively. See
Crown Point I, 319 F.3d at 1216 (plaintiffs alleged property
interest in expectation that city would “follow its own manda-
tory notice and public hearing procedures as set forth in a city
code, before depriving a [neighboring] landowner of the use
and enjoyment of its property”); Gagliardi, 18 F.3d at 193(plaintiffs “complain[ed] of a lack of notice and contend[ed]
that certain affirmative actions were taken without compli-
ance with the procedures established for municipal approv-
al”). As is the case here, the ordinances in question did not
significantly limit the municipal defendants’ discretion, so no
substantive property interest with respect to permitting deci-
sions was thereby created. See Crown Point I, 319 F.3d at
1217; Gagliardi, 18 F.3d at 192-93. Given this, both courts
concluded the plaintiffs could not state a claim for a violation
of the Due Process Clause: “The deprivation of a procedural
right to be heard, however, is not actionable when there is no
protected right at stake.” Gagliardi, 18 F.3d at 193; see also
Crown Point I, 319 F.3d at 1217. We agree with the Second
and Tenth Circuits’ reasoning and hold that Logan Neighbor-
hood does not have a legitimate claim of entitlement to the
“design review” allegedly required by the Spokane Municipal
Code.
Nothing we say here condones unlawful official action, and
we express no view about the legality of Spokane’s permitting
decision as a matter of state law. See, e.g., Wash. Rev. Code
11844 SHANKS v. DRESSEL
§ 36.70C.040 (Washington Land Use Petition Act); Clemente,
766 F.2d at 1365 (explaining that even when a plaintiff cannot
“successfully claim a constitutionally cognizable property
interest,” it is “well-settled . . . that regulations validly pre-
scribed by an agency are binding upon it”). But we cannot
agree with Logan Neighborhood that it has established a vio-
lation of the federal Due Process Clause. Cf. Carpinteria Val-
ley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822,
832 n.5 (9th Cir. 2003) (remarking that the courts of appeals
do not sit as “super zoning boards or zoning boards of
appeals”) (internal quotation marks omitted).
II. National Historic Preservation Act
[9] The district court also correctly dismissed Logan Neigh-
borhood’s claim that Spokane and the Dressels violated the
National Historic Preservation Act. Section 106 of the NHPA
does not create a private right of action against the federal
government. See San Carlos Apache Tribe v. United States,
417 F.3d 1091, 1098-99 (9th Cir. 2005). The reasoning of San
Carlos has even greater force in suits against private actors,
because the NHPA addresses its obligations solely to federal
agencies and the recipients of federal funding. See 16 U.S.C.
§ 470e (“The beneficiary of assistance . . . .”); id. § 470f
(“[A]ny Federal agency . . . .”); Tyler v. Cisneros, 136 F.3d
603, 607 (9th Cir. 1998); Lee v. Thornburgh, 877 F.2d 1053,
1056-57 (D.C. Cir. 1989). Additionally, the NHPA’s imple-
menting regulations disclaim any intent to regulate how pri-
vate property owners use federally listed property. See 36
C.F.R. §§ 60.2, 65.2(b). In the absence of any rights-creating
language, we agree with the district court that § 106 of the
NHPA does not create a private right of action against the
defendants. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84
(2002); Alexander v. Sandoval, 532 U.S. 275, 288-89 (2001).
III. Spokane Municipal Code
[10] Logan Neighborhood lastly contends that its claim
under the Spokane Municipal Code independently creates fed-
SHANKS v. DRESSEL 11845
eral subject matter jurisdiction. A state-law claim invokes 28
U.S.C. § 1331 jurisdiction only if it “necessarily raise[s] a
stated federal issue, actually disputed and substantial, which
a federal forum may entertain without disturbing any congres-
sionally approved balance of federal and state judicial respon-
sibilities.” Grable & Sons Metal Prod., Inc. v. Darue Eng’g
& Mfg., 545 U.S. 308, 314 (2005); see also id. at 313(explaining that a “substantial” federal issue is one that “indi-
cat[es] a serious federal interest in claiming the advantages
thought to be inherent in a federal forum”). Logan Neighbor-
hood’s state-law claim does not satisfy any of these require-
ments.
[11] First, Logan Neighborhood’s state-law claim presents
no “necessarily raised” or “actually disputed” federal issue.
According to Logan Neighborhood, its claim that Spokane
and the Dressels violated the Spokane Municipal Code cannot
be decided without looking to the “Secretary of the Interior’s
Standards for Rehabilitation” and the NHPA itself. This is
incorrect. Mission Avenue Historic District’s listing on the
National Register of Historic Places is not controverted. Spo-
kane has not attempted to apply the Secretary of the Interior’s
Standards for Rehabilitation to the Dressels’ construction.
Logan Neighborhood’s state-law claim turns entirely on Spo-
kane’s compliance with its own municipal code, and does not
require the construction or application of federal law.
Second, a federal interest in the availability of a federal
forum to adjudicate Logan Neighborhood’s state-law claim is
also missing. Cf. Grable, 545 U.S. at 313. No special need for
federal expertise or uniformity is apparent here, particularly
because the NHPA does not regulate how private owners
make use of listed properties. Cf. id. at 315. Logan Neighbor-
hood mistakenly relies on Stop H-3 Ass’n v. Coleman, 533
F.2d 434 (9th Cir. 1976), to bolster its argument. There, we
merely recognized that Congress took “one step toward
implementing the national policy in furtherance of historic
11846 SHANKS v. DRESSEL
preservation” when it enacted the NHPA.11 Id. at 438. Nothing
in that case suggests that a federal forum must be open to hear
every claim touching upon the integrity of a federally listed
historical landmark.
[12] Third, allowing Logan Neighborhood’s state-law
claim to go forward in federal court would undermine “Con-
gress’s intended division of labor between state and federal
courts.” Grable, 545 U.S. at 319. Although the absence of a
private federal right of action is no longer dispositive after
Grable, it remains relevant to our assessment of the “ ‘sensi-
tive judgments about congressional intent’ that § 1331
requires.” Id. at 318; cf. Merrell Dow Pharm. Inc. v. Thomp-
son, 478 U.S. 804, 817 (1986). The absence of a private right
of action in the NHPA is a “missing welcome mat, required
in the circumstances,” because acceptance of Logan Neigh-
borhood’s argument would result in federal jurisdiction when-
ever a plaintiff sues on a state law that refers to a concept
defined by federal law. See Grable, 545 U.S. at 318. This can-
not be. Logan Neighborhood’s claim under the Spokane
Municipal Code does not create federal subject matter juris-
diction.
CONCLUSION
After Lingle, neither Armendariz nor its progeny categori-
cally preclude due process challenges to impermissible gov-
ernmental action that deprives a person of real property. The
analysis of a property owner’s due process claim does not end
there, however. Applying our ordinary Due Process Clause
11
The plaintiffs in Stop H-3 unremarkably sought enforcement of a fed-
eral statute’s mandate — § 4(f) of the Department of Transportation Act
of 1966 — against a federal agency in federal court. See id. at 437-48 (cit-
ing 23 U.S.C. § 138(a)). We held that the Secretary of the Interior’s deter-
mination that a location was eligible for inclusion in the National Register
of Historic Places triggered § 4(f)’s applicability notwithstanding a state
official’s finding that the site had only marginal historic significance. See
id. at 441.
SHANKS v. DRESSEL 11847
jurisprudence, we conclude that Logan Neighborhood has not
stated a viable due process claim. We also reject Logan
Neighborhood’s claims under the NHPA and Spokane’s
Municipal Code.
AFFIRMED.