                                                                                       FILED
                               NOT FOR PUBLICATION                                      AUG 19 2013

                                                                                   MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                                U.S. COURT OF APPEALS



                               FOR THE NINTH CIRCUIT


 MAUREEN RICHTER,                                      No. 12-35370

                Plaintiff-Appellant,                   D.C.2:10-cv-00461-MJP

   v.                                                  AMENDED
                                                       MEMORANDUM*
 CITY OF DES MOINES, a municipal
 corporation,

               Defendant-Appellee.


                      Appeal from the United States District Court
                        for the Western District of Washington
                      Marsha Pechman, District Judge, Presiding

                          Argued and Submitted June 6, 2013
                                 Seattle, Washington

Before: GILMAN,** McKEOWN, and IKUTA, Circuit Judges.

        Maureen Richter appeals from the district court’s order granting summary

judgment in favor of the City of Des Moines (“the City”). We have jurisdiction under



         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
               The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S. Court of
Appeals for the Sixth Circuit, sitting by designation.
28 U.S.C. § 1291.

          Richter applied for permits to construct a trail that would connect her home on

the Puget Sound bluff to the beachfront below. Her trail application was denied

several times before the City finally gave its approval. She brought suit under 42

U.S.C. § 1983, 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.

          We will assume without deciding that Richter has a constitutionally protected

property interest based on her ownership and use of real estate. See Wedges/Ledges

of Calif. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994) (noting that a plaintiff

alleging a deprivation with regard to her property rights must establish that she has a

property interest subject to constitutional protection in order to prevail). Turning first

to Richter’s procedural due process claim, her basic argument is that she was deprived

of her constitutional right to a fair and impartial hearing as a matter of law because

Section 18.94.113 of the Des Moines Municipal Code requires the Hearing Examiner

to give deference to the City’s initial permit decision. This argument is, at base, an

argument that Section 18.94.113 is facially unconstitutional. But Richter never

squarely presented this claim to either the state court or the district court, and neither


                                            -2-
the original nor the amended complaint identified the ordinance that she is now

challenging.

      A court should proceed with reluctance “to set aside legislation as

unconstitutional on grounds not properly presented.” McGoldrick v. Compagnie

Generale Transatlantique, 309 U.S. 430, 434 (1940). In the present case, Richter had

multiple opportunities to properly present her claim of facial unconstitutionality and

failed to do so. She has therefore forfeited this claim. And even if her due process

claim is, as she claims, a damages claim and was not forfeited, there was no

constitutional infirmity in the process she received because the general due process

factors set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), taken together,

favor the City. The district court therefore did not err in dismissing Richter’s claim

of a procedural due process violation.

      We also find no error in the district court’s dismissal of Richter’s substantive

due process claim. She contends that the City allowed its displeasure with her initial

unauthorized trail construction to taint its review of her subsequent application for

permits, and that the City failed to consider the reports of her engineers on the trail’s

design. But Richter must meet an “exceedingly high burden,” see Shanks v. Dressel,

540 F.3d 1082, 1088 (9th Cir. 2008) (internal quotation marks omitted), of showing




                                           -3-
that the City’s actions “lacked a rational relationship to a government interest,” see N.

Pacifica LLC v. City of Pacifica, 526 F.3d 478, 485 (9th Cir. 2008).

      Even assuming without deciding that the City harbored ill feelings toward

Richter for having commenced constructing her trail without the required permits and

that it failed to give proper attention to her engineers’ reports, this sort of conduct is

not the broadly irrational kind previously found to have violated substantive due

process. Cf. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496,

1508 (9th Cir. 1990) (reversing summary judgment for the city and remanding for a

trial on the merits of a substantive due process claim where the city council initially

approved a proposed oceanfront development but later “abruptly changed course and

rejected the plan, giving only broad conclusory reasons”); Bateson v. Geisse, 857 F.2d

1300, 1303 (9th Cir. 1988) (finding a substantive due process violation where a

developer had satisfied all the conditions to receive a building permit when the city

council arbitrarily initiated a zoning change that prohibited the proposed project and

caused the permit to be denied).

      Here, the City denied Richter’s trail permits because she failed to comply with

applicable state and local construction and environmental codes. Such compliance is

unquestionably a legitimate government interest, and the City was justified in ensuring

that the proposed work adequately protected an environmentally sensitive area. The


                                           -4-
district court therefore did not err in dismissing Richter’s substantive due process

claim.

         Finally, with respect to Richter’s equal protection “class of one” claim, Richter

has failed to show that the City intentionally, and without a rational basis, treated her

differently from others similarly situated. See Vill. of Willowbrook v. Olech, 528 U.S.

562, 564 (2000) (per curiam). Richter’s claim is based on the allegations that a

contemporaneous trail proposal submitted by the City’s Department of Parks and

Recreation in a completely different area was approved even though the department

did not submit reports assessing the stability of the slope and that the City treated that

project more favorably than hers by approving the proposal in only five months.

         But Richter failed to show that slope-stability reports were required for the type

and slope of the trail proposed by the Parks Department. Moreover, the Parks

Department, unlike Richter, submitted all components of the required application in

a timely manner, enabling speedy review. 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.

         AFFIRMED.




                                             -5-
                                                                                 FILED
Richter v. City of Des Moines, 12-35370                                          AUG 19 2013

                                                                            MOLLY C. DWYER, CLERK
Ikuta, J., dissenting in part:                                                 U.S. COURT OF APPEALS



       The Fourteenth Amendment to the Constitution proclaims that no State shall

“deprive any person of life, liberty, or property, without due process of law.” It is

well-established that “[t]he right of [an owner] to devote [her] land to any

legitimate use is properly within the protection of the Constitution,” Harris v. Cnty.

of Riverside, 904 F.2d 497, 503 (9th Cir. 1990) (quoting Washington ex rel. Seattle

Title Trust Co. v. Roberge, 278 U.S. 116, 121 (1928)), and that the government

cannot deprive an owner of the “use and enjoyment” of her land without due

process. Id. But here the majority will only “assume without deciding that Richter

has a constitutionally protected property interest” based on her ownership of her

real property. Maj. op. at 2. I disagree with the majority’s hesitance on this point,

because it is clear that the Fourteenth Amendment protects Richter’s interests in

real property.

       The majority’s doubt that Richter has a claim for unconstitutional

deprivation of the use of her property reflects the City’s insistence that Richter’s

claim must be analyzed as the deprivation of a government benefit, namely, the

right to obtain a land-use permit. See Bd. of Regents v. Roth, 408 U.S. 564, 577

(1972) (establishing test for determining whether there is a constitutionally-

                                           1
protected property interest in government benefits)); see also maj. op. at 2 (citing

Wedges/Ledges of Cal. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994) (applying

Roth test)). Based on its interpretation of Roth, the City assumes that only the

government can create property interests, and so a court is limited to determining

whether Richter has a “legitimate claim of entitlement” to a benefit “as created and

defined” by state law. Bateson v. Geisse, 857 F.2d 1300, 1305 (9th Cir. 1988).

But Roth “stands not for a theory of plenary state control over the definition and

recognition” of constitutionally-protected property interests, “but for a much more

modest proposition”: that state law “might serve to elevate certain nontraditional

forms of property,” like welfare, permits, and licenses, to “constitutional status.”

Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1200 (9th Cir. 1998). Expanding

Roth beyond the limited context of government benefits, and into the “traditional”

realm of core property interests that the state cannot redefine at will, is a

constitutionally untenable approach to assessing property rights. Id. (quoting

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 439 (1982)). If

Roth were so broadly applicable, “States could unilaterally dictate the content

of—indeed, altogether opt out of—both the Takings Clause and the Due Process

Clause simply by statutorily recharacterizing traditional property-law concepts”

such as the right to use and enjoy one’s own real property. Id. at 1201.

                                           2
      Here, Richter claims that her due process rights were violated because City

staff (rather than a neutral adjudicator) denied Richter’s request for permission to

proceed with a development project on her property in the first instance, and the

hearing examiner adjudicating Richter’s appeal of this denial was required by law

to give the staff decision “a presumption of correctness.” 1 This claim should

survive summary judgment, because the undisputed facts show that Richter never

had a neutral adjudicator determine whether she had met the City’s requirements

for proceeding with the proposed use of her land. On its face, this procedure raises

grave due process concerns. As the Supreme Court has explained, an individual

may not be deprived of protected property rights without “impartial adjudication in

the first instance.” Concrete Pipe and Prods. of Cal., Inc. v. Constr. Laborers

Pension Trust for S. Cal., 508 U.S. 602, 626 (1993).2



      1
       Richter raised this same argument in her amended complaint, Dist. Ct. Dkt.
26 at 11, and so the majority errs in holding that she forfeited this claim, Maj. op.
at 3.
      2
        Indeed, even if the test applicable to deprivations of government benefits
without due process, see Mathews v. Eldridge, 424 U.S. 319, 335 (1976), were
applicable in this context, Richter has raised a genuine issue of material fact that
she was deprived of due process: Richter has a substantial property interest at
stake, the risk of erroneous deprivation is great (given the highly-deferential
standard the hearing examiner must apply), and the administrative burdens of
curing the problem are low, since the City need only provide a neutral hearing in
the first instance.

                                          3
      Because Richter has raised a substantial legal question as to whether the City

violated her procedural due process rights, and the City has not established that it is

entitled to judgment as a matter of law, I would reverse the district court’s grant of

summary judgment as to this claim.




                                          4
