Woods View II, LLC v. Kitsap County , 484 F. App'x 160 ( 2012 )

FILED
NOT FOR PUBLICATION JUN 13 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WOODS VIEW II, LLC; et al., No. 11-35605
Plaintiffs - Appellants, D.C. No. 3:10-cv-05114-BHS
v.
MEMORANDUM*
KITSAP COUNTY; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted June 5, 2012
Seattle, Washington
Before: SILVERMAN and MURGUIA, Circuit Judges, and HALL, District
Judge.**
Woods View II, LLC (“Woods View”) and Darlene A. Piper appeal the
district court’s grant of summary judgment in favor of Kitsap County, Washington,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Janet C. Hall, District Judge for the District of
Connecticut, sitting by designation.
and three County officials (“Appellees”) on 42 U.S.C. § 1983 claims arising from
the failure of a proposed real estate development. The district court found that
Piper, the sole member of Woods View and guarantor of its debts, lacked standing
to bring individual claims against Appellees. The court further found that Woods
View’s claims were not ripe. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm, in part on alternate grounds.
Like the district court, we find that Piper’s personal financial losses are
derivative of Woods View’s own losses. Piper was not injured directly and
independently of the limited liability company and therefore lacks standing to
pursue individual claims against Appellees. See RK Ventures, Inc. v. City of
Seattle, 307 F.3d 1045, 1057 (9th Cir. 2002).
As to the ripeness of Woods View’s claims, the district court concluded that
Woods View could not meet its burden of proving that a final decision had been
reached on its permit applications, because the applications were ultimately
approved and Woods View did not appeal the agencies’ decisions. We disagree.
When takings or due process claims are based on a permitting authority’s
unreasonable delay or failure to act within mandated time periods, a permit
approval constitutes a final decision for ripeness purposes. See Norco Constr., Inc.
v. King Cnty., 801 F.2d 1143, 1145-46 (9th Cir. 1986).
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However, we find that Woods View’s takings claim is not ripe, because
Woods View has not demonstrated that it pursued and was denied just
compensation in Washington state court prior to filing its federal takings claim.
Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 195
(1985).
Further, while we find that Woods View’s procedural and substantive due
process claims are ripe, we agree with the district court’s alternative findings that
the claims fail on the merits. Woods View alleges that its due process rights were
violated by Appellees’ interference with its application for a Large On-Site Sewage
System operating permit (“LOSS permit”) from the Washington Department of
Health (“DOH”) and by Appellees’ failure to issue a decision on its Site
Development Activity Permit (“SDAP”) and State Environmental Policy Act
(“SEPA”) applications within the 78-day period provided by county law. Neither
allegation can support a procedural or substantive due process claim.
First, Appellees’ alleged interference with Woods View’s LOSS permit
application cannot give rise to a due process claim, because Woods View did not
have a legitimate claim of entitlement to a LOSS permit. Nor did it have a
legitimate claim of entitlement to a decision on its LOSS permit application within
a particular period of time. In the absence of a cognizable property interest, due
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process is not violated. See Shanks v. Dressel, 540 F.3d 1082, 1090-91 (9th Cir.
2008).
While Woods View did have a legitimate claim of entitlement to a decision
on its SDAP and SEPA applications within 78 days, meaningful post-deprivation
remedies were available to address Appellees’ failure to act by the statutory
deadline. See Norco Constr., Inc. v. King Cnty., 649 P.2d 103, 104-07 (Wash.
1982). Such post-deprivation remedies were sufficient to satisfy procedural due
process. See Parratt v. Taylor, 451 U.S. 527, 539 (1981), overruled on other
grounds by Daniels v. Williams, 474 U.S. 327 (1986).
Finally, because it is at least fairly debatable that Appellees’ delays in
issuing the SDAP and SEPA approvals were rationally related to a legitimate
governmental interest in ensuring that local development complied with state law,
Woods View cannot meet the “exceedingly high burden” for establishing a
substantive due process claim. Shanks, 540 F.3d at 1088-89.
AFFIRMED.
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