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Durland v. San Juan County

Court of Appeals of Washington, Division 1

September 30, 2013

MICHAEL DURLAND; KATHLEEN FENNELL; and DEER HARBOR BOATWORKS, Appellants,
v.
SAN JUAN COUNTY; WES HEINMILLER; and ALAN STAMEISEN, Respondents.

UNPUBLISHED

Cox, J.

"A prima facie case under 42 U.S.C. § 1983 requires the plaintiff to show that a person, acting under color of state law, deprived the plaintiff of a federal constitutional or state-created property right without due process of law."[1] "Property interests are not created by the constitution but are reasonable expectations of entitlement derived from independent sources such as state law."[2]

Here, property owners Michael Durland, Kathleen Fennell, and Deer Harbor Boatworks (collectively "Durland") fail to demonstrate any constitutionally protected property right either under the San Juan County Code or otherwise. Accordingly, the trial court properly dismissed this action. We affirm.[3]

Wesley Heinmiller and Alan Stameisen (collectively "Heinmiller") own property on Orcas Island in San Juan County. On August 8, 2011, Heinmiller applied for a permit to build a second story on his garage located on his property.

On November 1, the San Juan County Department of Community Development and Planning granted the building permit. The San Juan County Code does not require public notice for the issuance of this type of permit.

Durland owns property adjacent to Heinmiller's property. On December 8, Durland received documents based on a Public Records Act request he made to San Juan County. During his review of these documents, he discovered that the County had issued a building permit to Heinmiller over a month earlier.

On December 19, Durland appealed the issuance of this permit to the San Juan County Hearing Examiner. The hearing examiner dismissed Durland's appeal as untimely.

Durland then commenced this action. The complaint, after stating a number of factual allegations, states that the hearing examiner's decision and the San Juan County Code violate 42 U.S.C. § 1983.[4] The request for relief seeks a declaration that Durland's due process rights were violated by the lack of notice and opportunity to be heard on the issuance of the building permit. There is no substantive challenge in the complaint to the permit the County issued.

In May 2012, San Juan County moved for summary judgment in this case on the basis that Durland could not establish a constitutionally protected property interest. The superior court granted the motion.

Durland appeals.

DISMISSAL OF 42 U.S.C. § 1983 CLAIM

Durland argues that the trial court erred when it summarily dismissed his 42 U.S.C. § 1983 claim. He contends that he was deprived of a constitutionally protected interest without a meaningful opportunity to be heard. We disagree.

This court reviews summary judgment determinations de novo, engaging in the same inquiry as the trial court.[5] Summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.[6] Further, summary judgment is ...


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