      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



MICHAEL DURLAND; KATHLEEN                              No. 69134-1-1
FENNELL; and DEER HARBOR                                                            CO
BOATWORKS,                                             DIVISION ONE                 CD




                     Appellants,                                                    — 1

                                                                                    cn    •j •
                                                                                    en    --"



SAN JUAN COUNTY; WES                                   UNPUBLISHED
HEINMILLER; and ALAN STAMEISEN,
                                                       FILED: September 30. 2013
                     Respondents.




       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




      1 Mission Springs. Inc. v. City of Spokane. 134 Wn.2d 947, 962, 954 P.2d
250(1998).

       2id, at 962 n.15 (citing Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.
Ct. 2701, 33 L. Ed. 2d 548 (1972)).
No. 69134-1-1/2


       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 permitto 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


      3We deny Heinmiller's motion to strike portions of Durland's statement of
the case in his opening brief. We have disregarded materials not properly before
us for purposes of deciding this case.

       4 Clerk's Papers at 11.
No. 69134-1-1/3


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 appropriate if
reasonable minds could reach but one conclusion from all the evidence.7

                    Constitutionally Protected Property Interest

       Durland argues that he has a constitutionally protected property interest

that supports his § 1983 claim against San Juan County. Specifically, he


       5 Harberd v. City of Kettle Falls. 120 Wn. App. 498, 507, 84 P.3d 1241
(2004).

       6CR 56(c); Peterson v. Groves. 111 Wn. App. 306, 310, 44 P.3d 894
(2002).

       7 Harberd. 120 Wn. App. at 507-08.
No. 69134-1-1/4


contends that the San Juan County Code's height and size limitations for garage

and accessory buildings confer a property interest in having the County comply

with these limitations. He asserts that he is entitled to notice and a hearing

before he is deprived of that claimed right. We disagree.

       Under 42 U.S.C. §1983,

       Every person who, under color of any statute, ordinance, regulation
       ... of any State . . . subjects, or causes to be subjected, any citizen
       of the United States ... to the deprivation of any rights, privileges,
       or immunities secured by the Constitution and laws, shall be liable
       to the party injured in an action at law, suit in equity, or other proper
       proceeding for redress ....

       "To establish a prima facie due process violation under § 1983, the plaintiff

must show that the defendant deprived the plaintiff of a constitutionally protected

property right."8 "Property interests are not created by the constitution but are
reasonable expectations of entitlement derived from independent sources such

as state law."9 '"A protected property interest exists if there is a legitimate claim

ofentitlement to a specific benefit.'"10 More specifically, "a zoning ordinance can
create a property right."11



       8 Manna Funding. LLC v. Kittitas County. 173 Wn. App. 879, 894-95, 295
P.3d 1197 (2013) (citing Mission Springs. Inc.. 134 Wn.2d at 962: Robinson v.
City of Seattle. 119 Wn.2d 34, 58, 830 P.2d 318 (1992)).

       9 Mission Springs. Inc.. 134 Wn.2d at 962 n.15 (citing Bd. of Regents. 408
U.S. at 577).

      10 Nieshe v. Concrete Sch. Dist.. 129 Wn. App. 632, 641-42, 127 P.3d 713
(2005) (internal quotation marks omitted) (quoting Goodisman v. Lytle, 724 F.2d
818, 820 (9th Cir. 1984)).
       11
            Asche v. Bloomouist. 132 Wn. App. 784, 797-98, 133 P.3d 475 (2006).
No. 69134-1-1/5


       This court reviews de novo questions of law, including statutory

construction.12

       Here, Durland relies primarily on Asche v. Bloomquist to make his case.13
In Asche. Division Two considered whether the Asches had a property interest

under a Kitsap County zoning ordinance.14 It concluded that the Asches had a
property interest in preventing their neighbors, the Bloomquists, from building a

structure over 28 feet in height.15 The court came to this conclusion because ofa
"View Protection Overlay Zone" in the Kitsap County Code.16 According to this
zoning ordinance, a building may be built up to 28 feet without any

prerequisites.17 But a building taller than 28 feet but less than 35 feet could "only
be approved ifthe views of adjacent properties, such as that of the Asches,

are not impaired."18




       12 ]d at 797.
       13 Opening Brief of Appellants at 17-18 (citing Asche v. Bloomguist. 132
Wn. App. 784, 133 P.3d 475 (2006)).

       14 Asche. 132 Wn. App. at 797-99.

       15]pLat798.

       16 Id

       17 kL
       18 Id. (emphasis added).
No. 69134-1-1/6


       The court concluded that the Asches had "a property right, created by the

zoning ordinance, in preventing the Bloomquists from building a structure over 28

feet in height."19 Thus, procedural due process applied to this property right.20
       Here, Durland cites specific provisions of the San Juan County Code to

support his assertion that there is a similar constitutionally protected property

right in this case. These provisions are found within the Shoreline Master

Program. Specifically, he relies on SJCC 18.50.330(B)(14), which regulates the

height of residential structures, and SJCC 18.50.330(B)(15), which regulates the

height and size of garage and accessory buildings.

       Durland also relies on SJCC 18.50.330(E)(2)(a), (3), and (4).

Respectively, these provisions discuss which accessory uses and developments

are exempt from permitting requirements, when a shoreline substantial

development permit is required, and when accessory structures may be

permitted as conditional uses.21
       It is noteworthy that not one of these cited provisions mentions any

consideration of adjacent property views. This fact alone distinguishes this case

from Asche.22

       The only reference to views in any of these cited provisions is in SJCC

18.50.330(B)(14). That provision generally limits the height of residential


       19 Id.

       20 Id.

       21 SJCC 18.50.330(E)(2)(a), (3), and (4).

       22 See Asche. 132 Wn. App. at 798.
No. 69134-1-1/7


structures to 28 feet, provided that heights above 35 feet are permitted as

conditional uses.23 In such cases, the "applicant must demonstrate that the
structure will not result in significant adverse visual impacts, nor interfere with

normal, public, visual access to the water."24 This language refers to "public,
visual access to water."25 Significantly, this language does not refer to visual
impacts of adjacent property owners.

       Additionally, as the trial court correctly reasoned, SJCC 18.50.140 assists

in defining what views are at issue here. This provision generally addresses

public views with one exception. SJCC 18.50.140(D) describes view protection

for "surrounding properties to the shoreline and adjoining water." But that

protection applies when there is "development on or over the water."26 In the
instant case, there is no "development on or over the water." Thus, harmonizing

the provisions at issue, the visual impacts language on which Durland relies does

not apply to adjacent property owners.

       At oral argument for this case, Durland advanced the theory that the cited

statutory framework on which the claim rests is mandatory, not discretionary, in

character. From this, Durland argues that a property right exists. Neither the

briefing below nor the briefing here is persuasive on this point. Accordingly, we

reject this argument.


       23SJCC18.50.330(B)(14).

       24 Id

       25 jd
       26 SJCC 18.50.140(D).
No. 69134-1-1/8


       In sum, the superior court correctly determined that these zoning

ordinances do not confer a property right on Durland to prevent Heinmiller from

building a garage that could impact Durland's view as an adjacent property

owner. Consequently, procedural due process protections do not apply. The

court properly dismissed the 42 U.S.C. § 1983 claim.

                                  ATTORNEY FEES


       Heinmiller requests an award of attorney fees and costs under RCW

4.84.370. For the reasons discussed below, we deny this request.

       RCW 4.84.370(1) provides for an award of "reasonable attorneys' fees

and costs ... to the prevailing party or substantially prevailing party on appeal

before the court of appeals ... of a decision by a county ... to issue, condition,

or deny a . . . building permit

       Here, Durland argues that fees are not permitted because Heinmiller is not

a prevailing party. This argument is based, in turn, on the fact there was no

hearing on the land use decision below. As this court recently held in Durland v.

San Juan County.27 which also arose from the facts in this case, that argument is

untenable in Division One. The plain words of the statute do not require a party

to prevail on the merits to be entitled to fees.28 Thus, this argument does not
serve as a basis for our decision to reject an award of attorney fees.




       27
            175 Wn. App. 316, 305 P.3d 246, 251 (2013).

       28 Id (citing Prekeges v. King County. 98 Wn. App. 275, 285, 990 P.2d
405(1999)).


                                             8
 No. 69134-1-1/9



       Instead, we reject an award of fees in this case because it is, essentially, a

 42 U.S.C. § 1983 claim, which does not permit an award of fees to a defendant.

 We say this despite the heading on the complaint. As we already noted, there

 was no substantive attack against the permit. Rather, this was a claim that the

 procedures in this case deprived Durland of constitutionally protected rights. We

 also note that fees were awarded to Heinmiller in the Skagit County case, which

 addressed the LUPA challenge.29 In sum, fees are not awardable under the
 special circumstances of this case.

       The award of costs, as distinct from attorney fees, to Heinmiller, as the

 substantially prevailing party, may be made upon timely compliance with the

 provisions of RAP 14.1 et seq.

       We affirm the summary judgment order.

                                                          CtfrX
 WE CONCUR:




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        29
             Id.
