September 6, 2012

PLF to Ninth Circuit: Owning land creates property interests protected by due process

By Brian T. Hodges Senior Attorney

The Fourteenth Amendment’s Due Process Clause says that no state shall deprive any person of property, without due process of law.  One question that sometimes comes up is, What is “property”?  It’s important to know the answer, because “property”—and the rights inherent in owning property—are protected by the Due Process Clause, but things that don’t count as property, such as mere expectancies that lack any indicia of legal entitlement, are not covered.

It can be difficult to determine if certain interests are “property” in some cases.  For many years, courts held that government benefits dervied from social welfare programs were not property that qualified for due process protection, until the Supreme Court changed course.  But irrespective of close calls, the ownership of land and all that it entails, including the right to use and enjoy the land, should fall squarely within the meaning of “property” under the Due Process Clause.  Nevertheless, courts sometimes get mixed up about this.

One example is the case of Richter v. City of Des Moines, in which PLF attorneys filed an amicus brief this week.  In that case, property owner Maureen Richter applied to the City of Des Moines, Washington, for permission to construct a footpath on her property that would allow her to safely access the beach from the bluff where her house is located.  When the city denied her application, Ms. Richter appealed to the city hearing examiner, and then later challenged the denial in federal court, alleging that the city’s appeal process violated her right to an impartial hearing, which is protected by the Due Process Clause.

Before addressing the constitutionality of the city’s hearing procedures, the district court made a surprising conclusion: Richter was not protected by the Due Process Clause because her ownership of the property, and her well-founded right to use her property to access the shoreline, did not establish constitutionally protected property interests.  This meant that Richter’s due process claim failed.

Our brief demonstrates that the district court’s opinion should be reversed.  First, the court said that the land use permit Richter was seeking was only a government benefit, meaning that it did not implicate any protected property interests.  But the notion that land use permits are merely discretionary benefits that can be granted or revoked purely at the government’s whim was repudiated by the U.S. Supreme Court in the PLF case Nollan v. California Coastal Commission.  There, the Court said that the “right to build on one’s own property—even though its exercise can be subjected to legitimate permitting requirements—cannot remotely be described as a ‘government benefit.'”  Instead, the land use permitting process implicates the applicant’s constitutionally protected property rights.  This view is consistent with the Seventh Circuit Court of Appeals’ statement in River Park v. City of Highland Park that zoning restrictions are not the measure of an owner’s property interest.  Rather, zoning ordinances just create a set of rules restricting the exercise of preexisting property rights.  And when those rules are applied arbitrarily, the Due Process Clause is violated.

The district court’s conclusion is also off-the-mark because the court evaluated the nature of Richter’s property interest under the wrong precedent.  The court applied cases that were designed to allow courts to determine when truly discretionary government benefits, such as government employment or assistance checks, should qualify for due process protection.  Those cases don’t govern Richter’s case.  Her case involves traditional property rights that courts have long recognized as being protected by the Due Process Clause.  When the city denied Richter’s application, it prevented her from exercising the right to use her property.  Therefore, the district court should have concluded that her case presented a textbook example of a property interest protected from improper deprivation by the Due Process Clause.

It is now up to the Ninth Circuit to finally resolve the confusion about property interests and hold that ownership of land is sufficient to establish a property interest worthy of due process protection.

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